01-3660 U.S. v. Gutierrez-Herrera

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“[W]hether or not Mr. Gutierrez’s effort to reacquire the lost kilograms was part of the conspiracy to distribute them initially, his personal involvement in the September transaction renders it relevant conduct.

“Mr. Gutierrez went to the Popeye’s for the specific purpose of meeting Marin and accepting delivery of the two kilograms of cocaine. Mr. Gutierrez personally committed the wrongful act, and the district court did not clearly err by attributing the two kilograms of cocaine to him as relevant conduct under sec.

1B1.3(a)(1)(A) without resorting to the ‘reasonable foreseeable’ analysis of sec. 1B1.3(a)(1)(B).

“Mr. Gutierrez did not present any evidence to show that the Government somehow coerced him to participate in the September 8 transaction; rather, the evidence shows that he willingly went to the Popeye’s to procure the two replacement kilograms of cocaine. It was Mr. Gutierrez’s expectation that he would receive either money or replacement cocaine that led to the September 8 transaction, not pressure by the Government. He therefore cannot show that sentencing entrapment occurred.”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Leinenweber, J., Ripple, J.