In the

United States Court of Appeals

For the Seventh Circuit

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Nos. 04-1170 & 04-1243

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PAUL J. DELATORRE and

FREDERICK J. DIETZ,

Defendants-Appellants.

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Appeals from the United States District Court

 for the Western District of Wisconsin.

Nos. 03-CR-088-S-01 & 03-CR-088-S-02—John C. Shabaz, Judge.

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ARGUED APRIL 4, 2005—DECIDED MAY 4, 2005

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Before POSNER, ROVNER, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge. Paul Delatorre and Frederick Dietz

each pleaded guilty to one count of conspiring to possess and

distribute MDMA, commonly known as ecstasy, see 21 U.S.C.

§§ 846, 841(a)(1), and were sentenced to 180 and 60 months’

imprisonment respectively. Both defendants appeal their

sentences, arguing that the district judge held them accountable for too much ecstasy. See U.S.S.G. § 1B1.3(a)(2). They

also contend, relying on United States v. Booker, 125 S. Ct.

738 (2005), that the judge violated their constitutional rights

by determining drug quantity himself and then sentencing
2 Nos. 04-1170 & 04-1243

them as if the guidelines were mandatory. Delatorre also

insists the court should have granted his motion for a downward departure under U.S.S.G. § 5K2.0. We remand both

cases under United States v. Paladino, 401 F.3d 471 (7th

Cir. 2005), for the limited purpose of determining whether

the additional latitude Booker’s remedy affords the judge

would have aided the defendants.

I.

The facts are undisputed. In April 2003, Belgian customs

officers intercepted a package destined for Wisconsin that

contained almost 250 grams of ecstasy. Drug Enforcement

Agency agents executed a controlled delivery, leading them

to arrest Dietz. He confessed that Delatorre, a friend in

New York, had arranged for a supplier in Amsterdam to

ship him the drugs.

Dietz recounted his involvement with Delatorre’s distribution activities. In May 2000, Dietz entered the United States

with roughly 1.3 kilograms of ecstasy procured by Delatorre

in Amsterdam. U.S. customs agents discovered the package

concealed in Dietz’s pants but did not arrest him, and the

U.S. Attorney for the Eastern District of New York declined

to prosecute. Dietz also admitted that around that time he

was shipped one other package by agreement with

Delatorre, though he insisted that he never opened it and

thought it contained marijuana.

With Dietz’s cooperation, agents arrested Delatorre, who

in his own confession corroborated Dietz’s account of their

roles in the conspiracy. Delatorre recounted his distribution

activities spanning five years—providing destinations,

approximate quantities, dollar amounts, and rough dates.

He also said the package Dietz recalled receiving in 2000

contained not marijuana, but 3,000 pills of ecstasy.

Based primarily on Delatorre’s admissions, the probation

officer recommended holding him responsible for an amount
Nos. 04-1170 & 04-1243 3

of ecstasy equivalent to about 2,300 kilograms of marijuana,

leading to a base offense level of 32. See U.S.S.G.

§§ 2D1.1(a)(3), (c)(4), cmt. n.10. The probation officer further

recommended an increase for Delatorre’s managerial role,

see U.S.S.G. § 3B1.1(c), a decrease for acceptance of responsibility, see U.S.S.G. §§ 3E1.1(a), (b)—yielding a total

offense level of 31—and a criminal history category of V.

Delatorre objected to the proposed drug quantity, contending that his uncorroborated admissions were too imprecise

to support it. He also moved for a downward departure

under U.S.S.G. § 5K2.0 because his unstinting cooperation

with police provided the sole basis for most of his sentence;

it would be “fundamentally unfair,” he ventured, to hold him

accountable for illegal activities that would have remained

undiscovered absent his confession.

The judge accepted the recommended guideline range,

including the underlying calculation of Delatorre’s relevant

conduct. In light of the three acceptance points awarded

Delatorre, the court denied his motion for a downward departure. The judge reasoned that Delatorre’s candid confessions to police after his arrest were not so unusual as to

take his case outside the heartland of similar guidelines

cases. Delatorre’s sentence of 180 months’ imprisonment

fell at the middle of the 168- to 210-month guideline range.

As to Dietz, the probation officer recommended holding

him responsible for an amount of ecstasy equivalent to just

over 1,100 kilograms of marijuana, leading to a base offense

level of 32. See U.S.S.G. §§ 2D1.1(a)(3), (c)(4), cmt. n.10. The

drugs seized from Dietz in the offense of conviction comprised roughly 100 kilograms of marijuana equivalent,

while the airport seizure and the package he received in

2000 comprised the rest. The probation officer further recommended the “safety valve,” see 18 U.S.C. § 3553(f);

U.S.S.G. §§ 5C1.2, 2D1.1(b)(6), a decrease for acceptance of

responsibility—yielding a total offense level of 27—and a

criminal history category of I.
4 Nos. 04-1170 & 04-1243

Dietz objected, arguing that the two transactions in 2000

were not part of his relevant conduct because they were

separated by three years from the offense of conviction; during

that time he moved out of state and—counsel represented—

left Delatorre and drug dealing behind. The judge overruled

Dietz’s objection, finding that the two transactions in 2000

and the offense of conviction were all part of an ongoing

conspiracy. Even though Dietz moved out of state in 2001,

the judge found, he “maintained contact with Delatorre and

agreed to jointly undertake the same course of conduct and

scheme as he engaged in” before leaving. The judge reasoned that the similarity between the offense of conviction

and the previous conduct was so great as to “trump” the

“temporal concern” raised by Dietz. On the government’s

motion, the judge departed downward the equivalent of two

levels based on Dietz’s substantial assistance, see U.S.S.G.

§ 5K1.1, thus imposing a 60-month term that was below the

70- to 87-month guideline range.

II.

Delatorre argues that the district court erred in refusing

to depart downward under § 5K2.0 to recognize that by so

thoroughly incriminating himself he demonstrated acceptance of responsibility to an unusual degree. In 2003, the

Sentencing Commission amended § 5K2.0 to prohibit a

departure on this very basis, see U.S.S.G. App. C, amend.

651, but the district court did not think itself bound by this

amendment because it took effect after Delatorre committed

the offense of conviction. Nonetheless, though the court

thought it still had discretion to depart based on extraordinary acceptance of responsibility, it chose not to. That

exercise of discretion is unreviewable. E.g., United States v.

Ferron, 357 F.3d 722, 724 (7th Cir. 2004).

Both defendants contend that the district court erred in

determining the amount of drugs involved in their relevant
Nos. 04-1170 & 04-1243 5

conduct. Drug quantity and whether uncharged offenses are

relevant conduct are questions of fact, which before Booker

we reviewed for clear error, e.g., United States v. White, 360

F.3d 718, 720 (7th Cir. 2004), and still do, see United States

v. Parra, 402 F.3d 752, 762-63 (7th Cir. 2005).

Delatorre argues that his confession was not a proper

basis for establishing drug quantity because it lacked details—dates, last names, and precise quantities—that were

never established by corroborating evidence. This seems an

odd argument coming from a defendant who insists that the

very same confession was so good that it should merit a

departure for extraordinary acceptance of responsibility.

Regardless, the missing details were irrelevant because

Delatorre’s account of his drug trafficking put him squarely

in the middle of the range of weights that would yield

exactly the same offense level; Delatorre approximated the

amount of ecstasy he distributed at a level equivalent to

2,300 kilograms of marijuana, and the offense level would

have been exactly the same as long as the marijuana equivalent was at least 1,000 kilograms. Moreover, we fail to see

why Delatorre’s confession would be unreliable just because

it is incomplete; a defendant’s “admission is even better

than a jury’s finding beyond a reasonable doubt; it removes

all contest from the case.” United States v. Warneke, 310

F.3d 542, 550 (7th Cir. 2002) (citing United States v. Broce,

488 U.S. 563, 570 (1989)).

Dietz argues that the court erred in concluding that the

two drug transactions in 2000 were part of his relevant conduct. The earlier transactions, he says, were not part of the

same course of conduct because almost three years passed

before he was caught engaging in the drug deal underlying

his conviction. During the intervening years—we are told by

counsel—Dietz “voluntarily abandoned the course of conduct

in which he had been involved with Delatorre.”

What’s missing, of course, is any evidence to back counsel’s representation; Dietz never testified at sentencing or
6 Nos. 04-1170 & 04-1243

offered evidence of any kind from which the district court

might have concluded that he took a hiatus from drug trafficking after the transactions in 2000. See United States v.

Sykes, 357 F.3d 672, 675 (7th Cir. 2004); Campania Mgmt.

Co., Inc. v. Rooks, Pitts & Poust, 290 F.3d 843, 853 (7th Cir.

2002) (stating that counsel’s representations are not

evidence). What Dietz really means, then, is that the district court should have inferred that his drug dealing with

Delatorre was put on hold for almost three years. It makes

no difference.

With respect to drug offenses, U.S.S.G. § 1B1.3(a)(2)

provides that all acts and omissions “that were part of the

same course of conduct or common scheme or plan as the

offense of conviction” should be deemed “relevant conduct”

by the sentencing court. United States v. Sumner, 325 F.3d

884, 889 (7th Cir. 2003). Application Note 9(A) to § 1B1.3

defines “common scheme or plan” as two or more offenses

that are “substantially connected to each other by at least

one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi.”

Further, Application Note 9(B) provides that offenses which

are not part of a “common scheme or plan” may still arise

from the “same course of conduct” if they are “connected or

sufficiently related to each other as to warrant the conclusion that they are part of a single episode, spree or ongoing

series of offenses.”

We need not consider whether the district court properly

concluded that Dietz’s 2000 offenses and his offense of conviction were part of the same course of conduct even despite

the near three-year gap between them. This conclusion gives

us pause, but ultimately does not matter because the offenses are substantially connected by multiple common

factors; all three transactions involved Dietz, Delatorre, and

a common supplier in Amsterdam working together to

smuggle ecstasy into the United States for distribution.

Under the guidelines any one of these common factors
Nos. 04-1170 & 04-1243 7

would suffice to make the three transactions part of a

common scheme or plan. See U.S.S.G. § 1B1.3, cmt. n.9(A);

United States v. Leonard, 289 F.3d 984, 987-88 (7th Cir.

2002); United States v. Zehm, 217 F.3d 506, 511-12 (7th Cir.

2000). See also United States v. Shonubi, 998 F.2d 84, 89

(2d Cir. 1993); United States v. Lawrence, 915 F.2d 402, 407

(8th Cir. 1990); United States v. Duran, 15 F.3d 131, 134 n.4

(9th Cir. 1994). Thus, even if Dietz were correct in asserting

that his 2000 transactions were not part of the same course

of conduct as the offense of conviction, they are still relevant conduct because they were executed as part of a

common scheme or plan.

Finally, Dietz and Delatorre both argue under Booker that

the judge committed constitutional error when he increased

their offense levels on the basis of his own determination of

drug quantity, and then applied the guidelines as mandatory. They have forfeited this argument, however, because

neither challenged the constitutionality of his sentence in

the district court. See Paladino, 401 F.3d at 481.

Since nothing in the record suggests whether the district

court would have imposed the same sentences even with the

additional latitude afforded by the remedial holding of

Booker, we agree with the government that a limited remand

under Paladino is appropriate. Accordingly, though we reject all of the guideline arguments raised by Dietz and

Delatorre, we remand both cases for the limited purpose of

soliciting the sentencing court’s view about the probable

result of ordering resentencing. See Paladino, 401 F.3d at

483-84.
8 Nos. 04-1170 & 04-1243

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-4-05