United States of America v. Fernando Delgado-Cortes

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 12, 2012
Decided July 9, 2012
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 11‐2538
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
FERNANDO DELGADO‐CORTES,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 1:09‐cr‐00764‐1
Matthew F. Kennelly,
Judge.
O R D E R
In this direct criminal appeal, Fernando Delgado‐Cortes (“Delgado”) challenges the district
court’s conclusion that he was responsible for conspiring to distribute nine kilograms of
cocaine. He admits that he and his coconspirators attempted to sell three kilograms of cocaine
to a government informant, but insists that the government did not meet its burden to prove
by a preponderance of evidence that he was also responsible for six kilograms of cocaine found
in a vehicle owned by a coconspirator. Because the district court’s conclusion was not clearly
erroneous, we affirm.
In September 2009, a government informant told Delgado that he would like to purchase
three kilograms of cocaine. Delgado told the informant that he was expecting a shipment soon
and negotiated a price. The shipment arrived, Delgado notified the informant, and they agreed
to carry out the transaction in the back room of a tire shop owned by Delgado’s employer, Jesus
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 11‐2538 Page 2
Sanchez‐Cebrero (“Sanchez”). Both Sanchez and another coconspirator, Gregorio Soberanis‐
Campos (“Soberanis”), were present for the transaction. A package containing about three
kilograms of cocaine was handed over to the informant and cut open to prove its purity. The
informant used his cell phone to signal government agents and then left the scene.
Around the time they received the informant’s signal, government agents—who had been
monitoring the tire shop during the transaction—saw a Ford Explorer drive into a service bay.
They watched an unidentified man exit the Explorer, and then they raided the shop, arresting
Sanchez, Delgado, and Soberanis. The agents found the three kilograms in the back room, and
with a canine search, discovered more drugs hidden in the Explorer. The canine search also
led to the discovery of packages in Sanchez’s Toyota Tacoma that contained six more kilograms
of cocaine; one of the packages was later found to bear Sanchez’s fingerprint.
After receiving Miranda warnings, Sanchez agreed to talk with government agents and
admitted to permitting Delgado and Soberanis to conduct the three‐kilogram transaction in his
shop. He attributed the six kilograms in his Tacoma to Delgado, though he conceded that he
gave Delgado permission to store the cocaine there. The drugs in the Explorer, he added, came
from someone called “El Licensiado.” He acknowledged knowing they were in the vehicle and
receiving $5,000 for keeping the Explorer at his shop.
Delgado pleaded guilty (along with Sanchez and Soberanis) to conspiracy to possess
cocaine with intent to distribute. See 21 U.S.C. §§ 846, 841(a)(1). In a presentence investigation
report, a probation officer, citing the need to “err on the side of caution,” sided with Delgado
and downplayed as circumstantial the evidence of his connection to the drugs in the Tacoma.
The probation officer calculated a Guidelines range based solely on the three kilograms that
Delgado attempted to sell to the informant: this quantity corresponded to an offense level of
25, which, combined with Delgado’s criminal‐history score of I, to yield a range of 57 to 71
months; however, the large quantity triggered a five‐year statutory minimum, see 21 U.S.C.
§ 841(b)(1)(ii)(II), which revised the range to 60 to 71 months, see U.S.S.G. § 5G1.1(c)(2).
The government objected to the probation officer’s recommendation that Delgado be
sentenced based solely on the three kilograms. It stressed Sanchez’s statement that the drugs
in the Tacoma belonged to Delgado and noted that the statement’s reliability was bolstered by
its being made against Sanchez’s penal interest. The government also argued that Delgado’s
initial conversation with the informant—which had been recorded by agents—suggested both
an ongoing relationship with a larger drug distributor and a history of drug dealing in
kilogram quantities that corroborated Sanchez’s identifying Delgado as the source of the six
kilograms in the Tacoma.

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No. 11‐2538 Page 3
At sentencing the district court accepted the government’s position and held Delgado
responsible for the six kilograms in the Tacoma. This quantity (being greater than five
kilograms) triggered a ten‐year statutory minimum, see 21 U.S.C. § 841(b)(1)(A)(ii)(II), which
the court imposed. The court explained that it believed Sanchez’s account (noting, among other
things that Sanchez could just have easily minimized responsibility by shifting blame to El
Licensiado or some other anonymous person instead of Delgado, his employee), and found
Sanchez’s account otherwise corroborated by the government’s recordings of Delgado’s initial
conversations with the informant.
We review a sentencing judge’s findings regarding drug quantities for clear error. United
States v. Barnes, 602 F.3d 790, 794 (7th Cir. 2010). A sentence will be vacated only if, “after
reviewing the entire record, we are left with the firm and definite conviction that a mistake has
been made.” United States v. Johnson, 643 F.3d 545, 551 (7th Cir. 2011) (quoting United States v.
Cross, 430 F.3d 406, 410 (7th Cir. 2005)).
Delgado first argues that the sentencing judge clearly erred when he relied on Sanchez’s
statement, despite having concerns about Sanchez’s credibility. Delgado points to the judge’s
acknowledgment that Sanchez might have been motivated to “shift” blame to others. In
Delgado’s view, the judge’s decision to base his finding on such an unreliable source of
information violates due process. See United States v. England, 555 F.3d 616, 622 (7th Cir. 2009).
But even if a witness is less than fully credible, a court may rely on such testimony so long
as it bears “sufficient indicia of reliability to support its probable accuracy,” United States v.
Johnson, 489 F.3d 794, 797–98 (7th Cir. 2007) (quoting United States v. Roche, 415 F.3d 614, 618
(7th Cir. 2005)), particularly when this testimony is consistent with other facts in the
record–which Sanchez’s statement was. “[T]he hallmark of reliability is consistency of facts and
details.” United States v. Zehm, 217 F.3d 506, 514 (7th Cir. 2000). Merely having an incentive to
lie—the lone doubt Delgado casts upon Sanchez’s credibility—does not preclude a court from
believing a witness’s testimony; “even the testimony of a potentially biased witness is sufficient
to support a finding of fact.” Johnson, 489 F.3d at 797); see, e.g., Cross, 430 F.3d at 410–11 (relying
on testimony of drug addict with criminal record); United States v. Galbraith, 200 F.3d 1006,
1012–13 (7th Cir. 2000) (relying on drug addict’s inconsistent testimony).
Delgado next appears to argue that the district court committed clear error by not requiring
corroboration of Sanchez’s charge that the drugs in the Tacoma belonged to him. But a lack of
corroboration does not prevent a judge from relying on a witness’s statements. Johnson, 489
F.3d at 798; Galbraith, 200 F.3d at 1012. In any event, the judge did not err in finding that
Sanchez’s account was corroborated by government recordings suggesting that Delgado had
both a relationship with a larger drug distributor and a history of drug dealing in kilogram
quantities.

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No. 11‐2538 Page 4
Finally Delgado hints at two arguments that are undeveloped. First, he insists that the
judge’s reasoning for crediting Sanchez’s testimony relied on speculation, and therefore did not
satisfy due process. But Delgado’s argument is conclusory, and he makes no attempt to explain
what was impermissibly speculative about the judge’s reasoning. See Puffer v. Allstate Ins. Co.,
675 F.3d 709, 718 (7th Cir. 2012). Second, he asserts that the sentencing judge ignored the
evidence regarding Sanchez’s fingerprint. At best, the fingerprint is of marginal significance:
Sanchez admitted that he was involved with the six kilograms in the Tacoma, and that he
touched one of the packages at some point does not disprove Delgado’s ownership.
AFFIRMED.

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