In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-1659

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JUAN MELENDEZ, JR.,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 01 CR 30172—William D. Stiehl, Judge.

____________

SUBMITTED JULY 26, 2006—DECIDED OCTOBER 27, 2006

____________

Before RIPPLE, KANNE, and, WILLIAMS, Circuit Judges.

KANNE, Circuit Judge. Juan Melendez was convicted by a

jury of conspiracy to distribute and possession with intent

to distribute marijuana, in violation of 21 U.S.C.

§§ 841(a)(1) and 846 (Count 1), and aiding and abetting

the possession of marijuana with intent to distribute in

excess of 100 kilograms in violation of 18 U.S.C. § 2 and 21

U.S.C.§ 841(a)(1) & (b)(1)(B) (Count 2). Melendez appealed

his convictions, sentence, and forfeiture. In United States v.

Melendez, 401 F.3d 851 (2005), we affirmed the conviction

and forfeiture but ordered a limited remand to ask whether

the district judge, had he known the Sentencing Guidelines

were advisory, would have imposed the same sentence on

Melendez. See United States v. Booker, 543 U.S. 220 (2005);
2 No. 03-1659

United States v. Paladino, 401 F.3d 471, 484-85 (7th Cir.

2005). Judge Stiehl answered that he would. Therefore,

there was no prejudice arising from the Booker error, and

we review Melendez’s sentence for reasonableness. See

United States v. Re, 419 F.3d 582, 583 (2005) (citation

omitted).

Because we did not previously evaluate the appropriateness of the Guidelines calculation, we do so now. In addition

to the convictions, the jury returned a special verdict

finding beyond a reasonable doubt that the amount of

marijuana involved in the Count 1 conspiracy exceeded

1000 kilograms and the amount in Count 2 exceeded 100

kilograms. At sentencing, the district judge, in agreement

with the presentence report, found by a preponderance of

the evidence that the conspiracy involved between 10,000

and 30,000 kilograms and that Melendez was the leader or

organizer of the conspiracy. See U.S. Sentencing Guidelines

Manual §§ 2D1.1(c)(2) & 3B1.1(a) (2002). The judge determined the offense level was 40 and criminal history category was I, giving a range of 292-365 months. The judge

imposed a sentence of 300 months’ imprisonment. Melendez

challenges the court’s calculation of the quantity of marijuana and finding as to his role in the conspiracy.

We review the district court’s interpretation of the

Sentencing Guidelines de novo and factual conclusions for

clear error. United States v. Chamness, 435 F.3d 724, 726

(7th Cir. 2006). The court’s calculation of a drug amount is

a finding of fact we review for clear error. United States v.

Olson, 450 F.3d 655, 685 (7th Cir. 2006). Melendez is “liable

not only for the amounts he personally sold but also for the

foreseeable amounts sold by his co-conspirators.” Id. (citing

United States v. Jarrett, 133 F.3d 519, 531 (7th Cir. 1998)).

The court’s “determination of reasonable foreseeability is a

factual determination reviewed for clear error.” Id.

Melendez admits that for purposes of assessing his

relevant conduct under the Sentencing Guidelines, he was
No. 03-1659 3

1 We note the court and Melendez used differing values to convert

pounds to kilograms, with the court adopting the “rule of thumb”

of 2.2 lb/kg and Melendez using 2.234 lb/kg. Because the kilogram

measures mass and the pound measures weight— a man on the

moon weighs less than he does on earth although his mass is

unchanged—there is no absolute conversion value. Melendez’s

method works to his benefit because it yields a lower number of

kilograms, but only by a fraction. In any event, Melendez did not

raise the issue, and the discrepancy is insufficient to find clear

error.

accountable for the marijuana which he supplied to Raymond Torbellin and which Torbellin stored for Melendez

(4,082 kilograms), in addition to certain marijuana transactions in 2000 and 2001 (1,687.8 kilograms), a total of “only”

5,769.8 kilograms.1

 However Melendez argues it was clear

error for the district court to have found an amount of more

than 10,000 kilograms of marijuana. The court considered

marijuana from a variety of sources in its calculus and

determined Melendez was accountable for an amount

exceeding 21,000 kilograms (the court approximated 25,000

kilograms). So if the record supports an amount from these

additional sources in excess of 4,230.2 kilograms, there will

be no clear error.

We need only consider the court’s inclusion of the 10,227

kilograms (22,500 pounds) of marijuana Torbellin sold to

Scott Vilmer during the conspiracy, all of which Melendez

argues should have been excluded. Of this amount,

Melendez argues 7,500 pounds is the same marijuana he

admitted he provided to Torbellin before 1998 and 2,500

pounds is the marijuana relating to the 2000 and 2001

transactions. To include these, says Melendez, would be

double counting. But that leaves 12,500 pounds (5,669.9

kg)–sufficient to uphold the sentence enhancement if

properly included.

The 12,500 pounds represents the amount of marijuana

Torbellin supplied to Vilmer between 1989 and 1998 when
4 No. 03-1659

Melendez was not Torbellin’s source. Melendez points to

Torbellin’s testimony, in which he stated he did not begin

purchasing from Melendez until after he had been selling to

Vilmer (although Melendez did admit in his brief to being

a participant “early on”). Melendez also points to a two-year

period (1994-96) in which Torbellin testified he had no

contact with Melendez and was not selling marijuana to

him. Melendez argues he was not liable for acts occurring

before he entered the conspiracy and while he was not

participating in it.

Even if we accept Melendez’s argument, at most he can

show that the 5,669.9 kilogram figure is an overstatement

by some amount, but he goes no further. We can no more

conclude the amount should have been reduced by 20

kilograms than by an amount in excess of 1,439.7 kilograms

(the amount pushing Melendez past the 10,000 kilogram

threshold). As such, Melendez cannot show it was clearly

erroneous—and thus we are not left with a definite and

firm conviction that a mistake has been made, see, e.g.,

United States v. Feekes, 929 F.2d 334, 338 (7th Cir.

1991)—to find him accountable at sentencing for an amount

exceeding 10,000 kilograms. The enhancement under

§ 2D1.1(c)(2) was warranted.

Next, Melendez argues it was error for the court to assess

a four-level increase under § 3B1.1(a) for his role in the

conspiracy (involving five or more participants) as a leader

or organizer. Again, the court’s findings of fact will only be

disturbed for clear error while its interpretation of the

guidelines is reviewed de novo, see United States v.

Sensmeier, 361 F.3d 982, 986 (7th Cir. 2004). Melendez

argues he was not a leader or organizer, but merely a

distributor.

At sentencing, the court discussed the trial testimony

to support his finding that Melendez took an active part

in the distribution activities of the organization (consisting
No. 03-1659 5

of at least twenty identified participants), particularly

in the latter part of the conspiracy. Notably, Melendez

instructed and supervised Fidel Trevino and Pablo Navarro

(two men who accompanied him on at least one delivery),

Salomon Rosales (a truck driver who drove a semi-truck

trailer load of drugs), and delivery persons who transported

the marijuana from Indianapolis, including Sylvia Cruz,

Rene Olvera, Melendez’s own wife, and a person known as

“Danzo.”

Melendez avoided physical labor and frequently oversaw and instructed others to break down the large loads

of marijuana into ten-pound blocks, but he did personally

tally the marijuana loads at the time of delivery to ensure

that he was paid for every pound. He also approved a

refund to Vilmer for 300 pounds of marijuana that was

“bad.” This mountain of evidence is more than adequate to

affirm the district court’s finding that Melendez was a

leader or organizer under § 3B1.1(a) and uphold the

resultant application of a four-level enhancement.

Because we conclude the district court properly calculated

Melendez’s guideline range (292-365 months) and imposed

a sentence within that range (300 months’ imprisonment),

Melendez’s sentence is entitled to a presumption of reasonableness. United States v. Mykytiuk, 415 F.3d 606, 608 (7th

Cir. 2005). Melendez argues nevertheless his sentence

is unreasonable under the factors delineated in 18 U.S.C.

§ 3553(a).

We will uphold sentences on Paladino remand if the

district judge gave “meaningful consideration” to the

statutory factors. United States v. Williams, 425 F.3d 478,

480 (7th Cir. 2005). Here, Judge Stiehl reaffirmed his

sentencing rationale. He stated he considered the statutory sentencing factors, including the directive that the

court impose a “sufficient, but not greater than necessary”

sentence. Judge Stiehl recounted several factors he took
6 No. 03-1659

into account when he imposed Melendez’s sentence.

Melendez’s arguments—resting primarily on his irrelevant

conduct after sentencing, see Re 419 F.3d at 583—are

insufficient to rebut the presumptive reasonableness of

his sentence.

Melendez’s sentence is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-27-06