United States v. Roberto Guzman-Ramirez

• Court: Court of Appeals for the Seventh Circuit
• Decided: February 10, 2020
• Docket: 19-1960
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 19-1960 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

ROBERTO GUZMAN-RAMIREZ, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:18-CR-0094(1) — Edmond E. Chang, Judge. ____________________

ARGUED JANUARY 30, 2020 — DECIDED FEBRUARY 10, 2020 ____________________

Before MANION, KANNE, and SYKES, Circuit Judges. PER CURIAM. After Roberto Guzman-Ramirez pled guilty to conspiracy to distribute cocaine, he was sentenced to 72 months’ imprisonment. On appeal, he contends that the dis- trict court should have applied a minor-role adjustment un- der the Sentencing Guidelines. He also argues that—com- pared to his coconspirator’s sentence—his sentence is unrea- sonable. 2 No. 19-1960

But the district court did not clearly err in its findings on Guzman-Ramirez’s role in the offense. And because the court was not required to consider a coconspirator’s sentence that had not yet been imposed, it did not abuse its discretion by imposing a sentence longer than the coconspirator’s. Accord- ingly, we affirm. I. BACKGROUND In 2016, a supplier in Mexico hired Guzman-Ramirez and his coconspirator, Jorge Gonzalez, to import 50 kilograms of cocaine into Wisconsin for sale. Gonzalez was to haul the co- caine in a semi-trailer from Texas to Chicago. Guz- man-Ramirez would then meet Gonzalez in Chicago and help remove the cocaine from a hidden compartment in the trailer. Guzman-Ramirez and another accomplice agreed to bring half of the cocaine to Milwaukee and store it at Guz- man-Ramirez’s house or business (Guzman-Ramirez owned an auto-body shop) until it could be picked up by an associate of the Mexican supplier. The supplier then asked another as- sociate—who was an informant for the Drug Enforcement Administration—to go to Chicago and assist in the transac- tion. The supplier told the informant that Guzman-Ramirez would be his point of contact and gave the informant Guz- man-Ramirez’s contact information. Guzman-Ramirez and his accomplice arrived in Chicago as planned. They then met the informant and another accom- plice at a rest stop near O’Hare airport to await Gonzalez. The conspirators planned to move Gonzalez’s truck to an auto shop in the city so that they could remove the cocaine in se- crecy. But when Gonzalez arrived, they discovered that the truck would not fit below an overpass on the route to the shop, and so they were unable to bring it there. No. 19-1960 3

Guzman-Ramirez and the informant contemplated other se- cluded locations where they could unload the truck; they were unable to come up with one. During the conversation, Guzman-Ramirez expressed familiarity with the total amount of cocaine in the semi-trailer, how the secret compartment worked, and how long it would take to remove the cocaine. Ultimately, the group decided to postpone the transaction, and Guzman-Ramirez returned to Milwaukee without the drugs. The next day, law enforcement agents searched the semi-trailer and removed 50.12 kilograms of cocaine. Guz- man-Ramirez was charged with, and pled guilty to, conspir- acy to possess with intent to distribute 5 kilograms or more of cocaine. See 21 U.S.C. §§ 841(a)(1), 846. The government sepa- rately indicted Gonzalez on the same charge. Gonzalez’s case was assigned to a different district judge, and Gonzalez—like Guzman-Ramirez—pled guilty. A probation officer prepared a presentence investigation report and calculated Guzman-Ramirez’s total offense level to be 31 with a criminal history category of I. The officer consid- ered, but declined to recommend, an enhancement or reduc- tion to the offense level, under U.S.S.G. §§ 3B1.1 or 3B1.2, for Guzman-Ramirez’s role in the conspiracy. Although the of- ficer concluded that Guzman-Ramirez did not have an aggra- vating role in the conspiracy, the officer nonetheless deter- mined that his role was significant, citing: Guzman-Ramirez’s position as the contact person for the informant; his participa- tion in discussions about where to drive the truck after learn- ing that the truck could not make it to the auto shop; and his agreement to store half of the cocaine. Guzman-Ramirez ob- jected to the probation officer’s guidelines calculation, 4 No. 19-1960

contending that he was entitled to a two-level reduction un- der U.S.S.G. § 3B1.2(b), because he agreed only to transport and store the drugs, and because he had no decision-making authority. The government opposed the reduction. At the sentencing hearing, the district court declined to ap- ply the reduction under § 3B1.2. In addressing whether Guz- man-Ramirez was “substantially less culpable than the aver- age participant,” the court identified as average participants Gonzalez and the accomplice who planned to help move half of the cocaine from Chicago to Milwaukee. The court rea- soned that Guzman-Ramirez was not substantially less culpa- ble than these coconspirators, even if other members of the conspiracy, like the supplier, were clearly more culpable. And although Gonzalez had a history of smuggling drugs for the Sinaloa drug cartel—a history that Guzman-Ramirez lacked—the court reasoned that Gonzalez’s prior smuggling was separate criminal activity for which Gonzalez had al- ready been convicted. For this particular shipment, the court found that Gonzalez was just a driver and “not much more culpable, if at all, than Mr. Guzman-Ramirez as the person who is going to receive the load.” The court also noted that the conspiracy’s leaders placed a substantial amount of trust in Guzman-Ramirez, as shown by his role as a point of contact between other members, his agreement to store half of the co- caine, and his knowledge of the amount of cocaine being sent to others. The parties agreed, however, that Guzman-Ramirez qual- ified for the safety-valve provisions of U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f). The safety valve decreased Guz- man-Ramirez’s total offense level to 29, which gave him a guidelines range of 87 to 108 months’ imprisonment. The No. 19-1960 5

court imposed a sentence of 72 months’ imprisonment, 15 months below the bottom of the range. Six weeks later, a different judge sentenced Gonzalez. Un- like in Guzman-Ramirez’s case, the presentence investigation report for Gonzalez recommended a minor-role adjustment under § 3B1.2. Gonzalez’s sentencing judge granted the ad- justment—over the government’s objection—and calculated Gonzalez’s total offense level to be 24 with a criminal history category of III. Gonzalez’s guidelines range was 63 to 78 months’ imprisonment, and the judge imposed a sentence of 48 months. II. ANALYSIS On appeal, Guzman-Ramirez first contends that he is en- titled to a minor-role adjustment because he only transported and stored the cocaine. The minor-role adjustment applies when a defendant “plays a part in committing the offense that makes him substantially less culpable than the average par- ticipant.” United States v. Orlando, 819 F.3d 1016, 1025 (7th Cir. 2016) (quoting U.S.S.G. § 3B1.2 cmt. n.3(A)). When determin- ing whether this adjustment applies, courts compare the de- fendant’s role to that of an average member of the conspiracy, not to that of the leaders. Id. at 1025. District courts are in- structed to consider several factors when assessing the de- fendant’s role in the conspiracy; these include his knowledge of the conspiracy, participation in planning and decision- making, and potential financial gain. United States v. Campu- zano-Benitez, 910 F.3d 982, 989 (7th Cir. 2018) (citing U.S.S.G. § 3B1.2 cmt. n.3(C)). A district court must make factual find- ings to determine whether a defendant should receive a mi- nor-role reduction, and, therefore, we review the decision for 6 No. 19-1960

clear error. United States v. Tartareanu, 884 F.3d 741, 745 (7th Cir. 2018). We are not convinced by Guzman-Ramirez's arguments in favor of applying the reduction. First, Guzman-Ramirez ap- pears to argue in his opening brief that drug couriers like him should categorically receive a minor-role adjustment. He em- phasizes the Sentencing Commission’s comment that a de- fendant whose role “was limited to transporting or storing drugs” may be eligible for a reduction. U.S.S.G. § 3B1.2, cmt. n.3(A). And he seizes upon our language in United States v. Leiskunas, 656 F.3d 732, 739 (7th Cir. 2011), that a drug courier may receive a minor-role adjustment because “playing a nec- essary role does not definitively prevent that same role from being minor.” But—even accepting Guzman-Ramirez’s self- characterization as a mere courier—the adjustment’s applica- tion is fact specific, based on the district court’s evaluation of “[the defendant’s] role in context of the other participants in the scheme.” Id. For the same reason, Guzman-Ramirez’s attempt to estab- lish his entitlement to the reduction by comparing himself to defendants in other cases who, he says, engaged in similar conduct, is futile. The district court correctly compared Guz- man-Ramirez’s conduct to that of other members in the same conspiracy. See United States v. Sandoval-Velazco, 736 F.3d 1104, 1108 (7th Cir. 2013). Further, we concluded that the district court erred by denying the reduction in only one of the cases Guzman-Ramirez cites.1 See United States v. Hunte, 196 F.3d

1 In the other three cases Guzman-Ramirez cites, we affirmed the dis- trict court’s determination regarding the defendant’s role in the conspir- acy. See United States v. Mendoza, 457 F.3d 726, 730 (7th Cir. 2006); United No. 19-1960 7

687, 695 (7th Cir. 1999). And in that case, the defendant only helped to cover up the drug trafficking of others; the defend- ant “provided nothing ‘necessary’ or ‘essential’ to the opera- tion.” Id. at 694. By contrast, Guzman-Ramirez agreed to un- load, transfer, and store a large quantity of cocaine. Guzman-Ramirez also argues that, within his conspiracy, he was less culpable than Gonzalez for three reasons: Guz- man-Ramirez “abandoned” the conspiracy before he com- pleted his role; Gonzalez had a history of drug smuggling; and Gonzalez was paid more. But these reasons do not hold up. First, rather than demonstrating abandonment of the con- spiracy, the record shows only that the conspirators had to postpone the transaction because they had nowhere to unload the drugs. Indeed, before returning to Milwaukee, Guz- man-Ramirez tried to come up with somewhere else to bring the truck. And law enforcement seized it the very next day.2 Second, the district court acknowledged Gonzalez’s his- tory with the cartel and explained why it was irrelevant to the minor-role inquiry. For this shipment, both defendants served as middlemen, and both were to receive a flat fee. Third, although the court did not mention that Gonzalez was to be paid more than Guzman-Ramirez, he was not re- quired to mechanically address every factor listed in the

States v. Johnson, 997 F.2d 248, 258 (7th Cir. 1993); United States v. Hagan, 913 F.2d 1278, 1283 (7th Cir. 1990). 2 To the extent that Guzman-Ramirez means to imply that he with- drew from the conspiracy, he points to no evidence that he took affirma- tive action to disavow or defeat the purpose of the conspiracy. See Smith v. United States, 568 U.S. 106, 113 (2013). 8 No. 19-1960

guideline comments. See Campuzano-Benitez, 910 F.3d at 989. Further, the court pointed to several details establishing that Guzman-Ramirez was at least as important to the conspiracy as Gonzalez: In addition to transporting drugs, Guz- man-Ramirez served as the point of contact between the sup- plier and dealer; he was entrusted with storing half of the co- caine; and he demonstrated familiarity with the full scope of the truck’s contents—including drugs that were intended for other recipients. Given these findings, Guzman-Ramirez has not shown that the district court’s conclusion about his role in the conspiracy was clearly erroneous. Next, Guzman-Ramirez contends that his sentence was unreasonable because the district court’s findings were erro- neously inconsistent with those of the judge who sentenced Gonzalez. This inconsistency, Guzman-Ramirez reasons, cre- ated an unwarranted sentencing disparity when Gonzalez re- ceived a minor-role reduction and a lighter sentence than Guzman-Ramirez received. We review the substantive reasonableness of a sentence for abuse of discretion. Orlando, 819 F.3d at 1025. A be- low-guidelines sentence, like Guzman-Ramirez’s, is pre- sumptively reasonable. Id. Guzman-Ramirez cannot rely on Gonzalez’s shorter sen- tence to establish that his own sentence was unreasonable. Gonzalez was sentenced after Guzman-Ramirez, and by a dif- ferent judge. We have consistently rejected arguments that compare an appellant’s sentence to those of a later-sentenced coconspirators. See United States v. Cardena, 842 F.3d 959, 999 (7th Cir. 2016) (explaining that the judge could not have erred by failing to consider a not-yet-imposed sentence of a cocon- spirator). Even if Guzman-Ramirez and Gonzalez had been No. 19-1960 9

sentenced by the same judge, it is well established that, when sentencing a defendant before coconspirators have been sen- tenced, “the district court could not have erred by failing to consider [coconspirators’] sentences, which had not yet been imposed.” Id. at 999; see also United States v. Porraz, 943 F.3d 1099, 1104 (7th Cir. 2019). Guzman-Ramirez asks us to instead follow the Eighth Cir- cuit’s decision in United States v. Lazenby, 439 F.3d 928 (8th Cir. 2006), another case that involved two defendants who had comparable roles in the same conspiracy but were sentenced by different judges and received disparate sentences. But un- like this case, Lazenby was a consolidated appeal of both de- fendants’ sentences (one by a defendant and one by the gov- ernment); the court found one sentence too high, and the other too low, and vacated them both. Id. at 929. The unfair discrepancy (one of multiple errors the appellate court iden- tified) could be addressed by decreasing one defendant’s sen- tence, increasing the other’s, or both. Here, neither the gov- ernment nor Gonzalez has appealed Gonzalez’s sentence, so the Lazenby remedy is not available. See United States v. Hem- sher, 893 F.3d 525, 535 (8th Cir. 2018) (explaining that Lazenby applies only to consolidated appeals). The only potential res- olution is to vacate Guzman-Ramirez’s sentence, but there is no procedural or substantive error that warrants doing so. III. CONCLUSION The district court did not clearly err when declining to give Guzman-Ramirez a minor-role enhancement, nor did it abuse its discretion when imposing a sentence that was longer than the one Gonzalez later received. We therefore AFFIRM the judgment of the district court.