United States v. Adalberto Rubio-Topete

OVERVIEW

Adalberto Rubio-Topete was convicted of conspiracy to distribute heroin in violation of 21 U.S.C. § 846 and possession of heroin with the intent to distribute in violation of 21 U.S.C. § 841 (a)(1). Rubio-Topete challenges the district court’s decision to exclude the testimony of Gabriel Soto and a defense investigator. He also contends that a two-level upward adjustment in his offense level for obstruction of justice based on his trial testimony violates the Constitution and is not supported by sufficient factual findings. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm Rubio-Topete’s conviction, vacate his sentence, and remand for resentencing.

FACTS

Gabriel Soto informed the San Mateo County Narcotics Task Force that a drug deal would occur on August 17, 1992. Soto told officers that Alfredo Becerra would arrive at a Redwood City parking lot in a red car and that Becerra would be accompanied by a yellow Chrysler Cordoba that would be the “load” car. Early on the morning of August 17th, officers began surveillance of the parking lot.

As anticipated, a red car accompanied by a yellow Chrysler Cordoba entered the lot that morning. The driver of the red…