United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued December 12, 2007

Decided January 11, 2008

Before

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. DANIEL A. MANION, Circuit Judge

Hon. ILANA DIAMOND ROVNER, Circuit Judge

No. 07-2028

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

ANICETO C. GALLARDO,

Defendant-Appellant.

Appeal from the United States

District Court for the Southern

District of Illinois.

No. 06 CR 30155

G. Patrick Murphy,

 Judge.

O R D E R

Ancieto C. Gallardo pleaded guilty to possessing cocaine with intent to

distribute. See 21 U.S.C. § 841(a)(1). He was sentenced at the low end of the

Guidelines range to 168 months’ imprisonment. Gallardo contends that it was error

for the district court to impose a two-level upward adjustment to his base offense level

for use of a special skill—his commercial driver’s license. See U.S.S.G. § 3B1.1. We

agree and vacate Gallardo’s sentence and remand for resentencing. 

Gallardo is a licensed commercial truck driver. In October 2006 an Illinois State

Police Trooper pulled him over for speeding. The trooper found several things about

the semi-tractor trailer that Gallardo was driving to be suspicious: its decals were not

up to industry standards; it was an old model that was nonetheless freshly painted; it

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 07-2028 Page 2

was pulling an empty vehicle hauler; and it displayed a “Support the Florida Troopers”

sticker, which the trooper knew from experience were often used to dissuade law

enforcement officers from stopping a vehicle. The trooper therefore asked Gallardo

where he was going. Gallardo said he was headed to a car lot in Chicago to pick up

cars that needed transporting, but he was unable to produce any documentation about

the alleged pick up or provide the name or location of the car lot. The trooper then

asked for, and received, Gallardo’s permission to search the truck. The trooper found

91 bundles, containing what was later determined to be 50 kilograms of cocaine, under

the truck’s sleeper bunk.

After Gallardo pleaded guilty to possessing the cocaine, a probation officer

prepared a presentence report. Gallardo objected to the probation officer’s

recommendation that his use of a commercial driver’s license merited a two-level

upward adjustment to his base offense level under U.S.S.G. § 3B1.1, which provides

for such an adjustment when, among other things, the defendant used a “special skill”

in a manner that “significantly facilitated the commission or concealment of the

offense.” Gallardo acknowledged that we have on multiple occasions held that longhaul truck driving is a “special skill” for purposes of § 3B1.1. Gallardo argued,

however, that there was “no connection” between his commercial driver’s license and

the offense here because, in his view, 50 kilograms of cocaine could just as easily have

been transported in the trunk of an ordinary car. The government conceded that 50

kilograms of cocaine could fit in the trunk of a sedan, but argued that use of a

commercial truck made concealment of the cocaine easier, which according to the

government’s reading of our decision in United States v. Tolar, 268 F.3d 530 (7th Cir.

2001), was sufficient to merit the adjustment. The district court agreed; it applied the

adjustment because it found that Gallardo, at least in theory, moved the cocaine “more

secretively” in the truck than he could have in a car. After hearing argument on the

sentencing factors in 18 U.S.C. § 3553(a), the court sentenced Gallardo at the low end

of the Guidelines range. 

Gallardo argues on appeal that it was error for the district court to impose the

two-level upward adjustment for using a special skill. See U.S.S.G. § 3B1.1. As he did

below, Gallardo accepts our earlier determination that commercial truck driving is a

“special skill” for purposes of this Guideline, see United States v. Smith, 332 F.3d 455,

458-50 (7th Cir. 2003); United States v. Lewis, 41 F.3d 1209, 1214 (7th Cir. 1994), but

argues that the district court erred in finding that he used his commercial driver’s

license in a significant way to facilitate the concealment of his possession of the

cocaine. Such a finding, which we accept unless clearly erroneous, Smith, 332 F.3d at

458, was required for the adjustment to apply, see U.S.S.G. § 3B1.1; United States v.

Tolar, 268 F.3d 530, 532-33 (7th Cir. 2001).

 

We agree with Gallardo that his commercial driver’s license did not lend

significantly to the concealment of his offense. In arguing to the contrary, the
No. 07-2028 Page 3

government relies solely on our decision in Tolar, but this case is distinguishable. In

Tolar, we said that the defendant, who created a phony trucking business as a front

to, over time, transport nearly 400 kilograms of cocaine and 2,000 kilograms of

marijuana before he was caught, merited the two-level adjustment because that

trucking business significantly facilitated the commission and concealment ofthe drug

offenses. See Tolar, 268 F.3d at 533-34. Gallardo, by contrast, did nothing more with

his commercial driver’s license than once drive with 50 kilograms of cocaine in his

truck’s sleeper bunk. Perhaps it was easier to hide that amount of cocaine in that bunk

than in the trunk of an ordinary sedan, but the government concedes that Gallardo

could have done so. In order for the Guideline for use of a special skill to apply, that

use must do more than merely aid in the concealment of the offense; it must

significantly facilitate the concealment of the offense. See U.S.S.G. § 3B1.1. To apply

the Guideline to Gallardo would read this language out of the Guideline, and that we

will not do. 

Accordingly, Gallardo’s sentence is VACATED and the case is REMANDED for

further proceedings.