United States v. Jose Cruz , 787 F.3d 849 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1992
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE O. CRUZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 13 CR 50007-2 — Frederick J. Kapala, Judge.
____________________
ARGUED APRIL 28, 2015 — DECIDED JUNE 1, 2015
____________________
Before FLAUM, KANNE, and WILLIAMS, Circuit Judges.
PER CURIAM. Jose Cruz pleaded guilty to distributing
heroin, 21 U.S.C. § 841(a)(1), and was sentenced within the
guidelines range to 160 months’ imprisonment. Cruz now
argues that the sentencing court committed a procedural er-
ror when it failed to consider his mitigating arguments
about the nature and circumstances of his offense, his coop-
eration with the police, and his family background, but Cruz
waived these complaints. He also believes that his sentence
2 No. 14-1992
is substantively unreasonable. But the district court consid-
ered and rejected Cruz’s contentions, and the resulting pris-
on sentence is therefore presumed reasonable. Cruz has not
rebutted this presumption, so we affirm.
In October 2011 Cruz, shortly after completing a prison
sentence for selling cocaine, began helping his uncle sell
heroin. Once a week the uncle delivered heroin to Cruz, who
then helped package it to sell. Initially, Cruz provided pro-
tection for two dealers, but he eventually began selling the
heroin himself as part of a three-member sales team. For
every $1,000 worth of heroin Cruz sold he kept $200 to $300
for himself. Between October 2011 and January 2012 the un-
cle provided around 960 grams of heroin to Cruz and the
two other dealers to sell. As part of a plea agreement, Cruz
pleaded guilty to one count of distributing heroin.
A probation officer recommended a guidelines range of
151 to 188 months’ imprisonment. In the presentence report
(“PSR”), the probation officer noted that Cruz had a difficult
childhood; his father was absent and many of his cousins
and uncles were gang members who sold drugs. The proba-
tion officer reported that prior to his incarceration Cruz
cared for his grandmother, who has HIV, lung cancer, and
bladder issues. Cruz also has three children that do not re-
side with him, but the PSR did not reveal anything further
about his relationship with them.
In his sentencing memorandum and at the sentencing
hearing, defense counsel asked the court to impose a below-
guidelines sentence because of Cruz’s immediate coopera-
tion with the police after his arrest. Cruz, he said, consented
to searches, directed police to active drug-dealing locations,
and provided a statement about his criminal activities, as
No. 14-1992 3
well as those of his uncle and cousin. Initially, Cruz even
agreed to testify against his uncle, but reneged after his fami-
ly was threatened. He argued that Cruz was a low-level
dealer, his offense was non-violent, and he accepted full re-
sponsibility. Further, he added that Cruz is the father of
three children and caretaker for his grandmother.
The district court adopted the probation officer’s pro-
posed findings and calculations. The judge found that Cruz’s
cooperation merited some consideration, but did not war-
rant a below-guidelines sentence because Cruz never fol-
lowed through on his promise to testify against his uncle.
The court also considered Cruz’s difficult upbringing, but
noted that a difficult childhood was not an excuse for com-
mitting crimes as an adult. The judge then rejected as
grounds for mitigation Cruz’s three children and his ill
grandmother because his absence would not cause “any out
of the ordinary hardship.” The judge explained that the 160-
month, within-guidelines sentence was necessary to deter
Cruz from future criminal activity, emphasizing Cruz’s con-
tinued criminal behavior despite the numerous opportuni-
ties he had to learn from his past mistakes. The judge also
found damning that Cruz committed the current offense just
six months after being released from prison for another drug
crime.
On appeal Cruz contends that the sentencing court pro-
cedurally erred by failing to consider the nature and circum-
stances of his offense. Cruz also asserts that the court did not
address his arguments that he was a low-level distributor in
the overall drug-conspiracy run by his uncle and cousin, he
sold heroin for a short time, he was paid only a small portion
of the sale price, and he cooperated with the government.
4 No. 14-1992
But these arguments were waived when, at the end of the
sentencing hearing, the judge asked if he had addressed all
of the arguments, and Cruz’s lawyer answered yes.
See United States v. Donelli, 747 F.3d 936, 940–41 (7th Cir.
2014) (mitigation argument waived if not raised in response
to court’s question); Garcia-Segura, 717 F.3d at 569 (same).
Moreover, the court in fact addressed Cruz’s argument that
he cooperated with the government, but found it only slight-
ly mitigating because Cruz stopped short of testifying
against his uncle.
Cruz also argues that his sentence is substantively unrea-
sonable because the court failed to grant him a “downward
variance” for his cooperation, his family’s business of drug
sales and his absent father, and the nature and circumstances
of his offense; namely, that he was recruited into the drug
business by his uncle and cousin who “used him to carry out
their criminal activities,” and he was “a small part of the al-
leged conspiracy.” Finally, he complains about the sentenc-
ing disparity resulting from the government’s dismissal of
the charges against his uncle and the fact that the other two
dealers were never charged.
But downward variances or departures are obsolete after
United States v. Booker, 543 U.S. 220, 233–34, 245 (2005); courts
now use the factors in 18 U.S.C. § 3553(a) to determine the
appropriate sentence. See United States v. Brown, 732 F.3d 781,
786 (7th Cir. 2013); United States v. Lucas, 670 F.3d 784, 791
(7th Cir. 2012). A within-guidelines sentence is presumptive-
ly reasonable and Cruz does not show that the judge’s rea-
soning is inconsistent with the § 3553(a) factors or otherwise
rebut that presumption. See Rita v. United States, 551 U.S. 338,
347 (2007); United States v. Banks, 764 F.3d 686, 690 (7th Cir.
No. 14-1992 5
2014); United States v. Williams, 436 F.3d 767, 768–69 (7th Cir.
2006). The court weighed the potentially mitigating family
circumstances—his children and ill grandmother—and his
partial cooperation against his criminal history, and ulti-
mately decided that a within-guidelines sentence was war-
ranted given Cruz’s many prior opportunities to learn from
his mistakes.
AFFIRMED.