United States v. Jose Melendez , 819 F.3d 1006 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 14-3590 & 15-1131
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE MELENDEZ and DENISE LAMBERT,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Western Division.
Nos. 13 CR 50006-7 & 13 CR 50006-5 — Frederick J. Kapala, Judge.
____________________
ARGUED SEPTEMBER 28, 2015 — DECIDED APRIL 20, 2016
____________________
Before FLAUM, KANNE, and SYKES, Circuit Judges.
KANNE, Circuit Judge. Defendants-Appellants Jose
Melendez (“Melendez”) and Denise Lambert (“Lambert”)
both pled guilty to participating in a heroin distribution con-
spiracy with Michael Craig (“Craig”) and others. Melendez
challenges his within-guidelines range sentence of 135
months’ imprisonment, disputing the district court’s finding
that he is liable for between three and ten kilograms of joint-
ly purchased heroin. Lambert challenges her within-
2 Nos. 14-3590 & 15-1131
guidelines range sentence of 80 months’ imprisonment as
substantively unreasonable on several grounds. We affirm
both sentences.
I. BACKGROUND
From approximately March 2011 to November 2011,
Melendez traveled with Craig to Chicago every two to three
days to jointly purchase heroin from a supplier that Melen-
dez introduced to Craig. For these purchases, Melendez and
Craig pooled their money together to obtain a discounted
bulk rate. After each purchase, they would return to Rock-
ford, Illinois, to weigh and divide the heroin for separate dis-
tribution.
From approximately October 2010 to January 2012, Lam-
bert, in addition to taking care of Craig’s children, rented an
apartment and vehicles that Craig used to store and
transport heroin and heroin trafficking proceeds. During this
time, Lambert delivered heroin mixtures and heroin traffick-
ing proceeds between Craig and his co-conspirators. Lam-
bert also agreed to transmit messages regarding drug sales
activity between Craig and an individual who was cooperat-
ing with the FBI.
On November 26, 2013, a federal grand jury returned a
superseding three-count indictment against Melendez, Lam-
bert, and Craig. Count 1 charged Melendez, Lambert, and
Craig with conspiring to possess with the intent to distribute
and to distribute heroin, in violation of 21 U.S.C. § 846.
Counts 2 and 3 charged Craig with distributing heroin, in
violation of 21 U.S.C. § 841(a)(1).
On April 2, 2014, Melendez and Lambert each pled
guilty to one count of conspiring to possess with the intent
Nos. 14-3590 & 15-1131 3
to distribute and to distribute heroin, in violation of 21
U.S.C. § 846.
A. Melendez’s Sentencing
On November 13, 2014, the district court held Melendez’s
sentencing hearing.
After hearing witness testimony, the district court deter-
mined that the most reliable facts were found in Melendez’s
admissions made in his plea agreement and January 10, 2012
written statement, which supported and supplemented his
plea agreement. Relying on these written admissions, the
district court found Melendez accountable for all the heroin
jointly purchased by Melendez and Craig.
Next, the district court found, by a preponderance of the
evidence, that the amount of heroin involved in Melendez’s
offense was greater than 3 kilograms but less than 10 kilo-
grams. In reaching this conclusion, the court made two esti-
mates of the drug quantities. For its first estimate, the court
used Melendez’s admissions in his plea agreement to assess
an approximate amount of 4.8 kilograms of heroin. For its
second estimate, the court used Melendez’s admissions in his
January 10, 2012 written statement to assess an approximate
amount of 3.315 kilograms of heroin. The court found that
both estimates supported a determination that the amount of
heroin involved in Melendez’s offense was greater than 3
kilograms but less than 10 kilograms.
Having so concluded, the district court adopted the
presentencing report’s assessment of a criminal history cate-
gory of IV and offense level of 29, which yielded a guidelines
range of 121 to 151 months. The court then sentenced
Melendez to 135 months’ imprisonment, a within-guidelines
4 Nos. 14-3590 & 15-1131
range sentence, and entered judgment against him on No-
vember 21, 2014. Melendez’s appeal follows.
B. Lambert’s Sentencing
On December 31, 2014, the district court held Lambert’s
sentencing.
The district court began by correcting a typographic error
in the presentencing report and finding that Lambert’s prop-
er sentencing guidelines range was 78 to 97 months, based
on a criminal history category of II and offense level of 27.
Both parties agreed.
The district court then found that the guidelines calcula-
tions provided an appropriate baseline for evaluation of the
§ 3553(a) factors and these computations accounted for
Lambert’s responsibility for between one to three kilograms
of heroin, her criminal history of II, and her acceptance of
responsibility.
Next, in discussing Lambert’s mitigating factors, the
court noted that she had acknowledged a history of sub-
stance abuse, she had successfully completed counseling, she
had serious health problems, and she had expressed deep
remorse for what she had done. The court observed that, in
aggravation, Lambert had a chronic history of noncompli-
ance with probation and conditional discharge, she had vio-
lated her pretrial supervision on a number of occasions, and
she had continued to recidivate, despite prior terms of incar-
ceration and numerous criminal and traffic convictions.
The court also considered and rejected Lambert’s various
mitigation arguments for a downward variance, including
those based on her reduced life expectancy and health is-
Nos. 14-3590 & 15-1131 5
sues, her limited role in the heroin conspiracy, her prior lim-
ited criminal history, and her history and characteristics.
In conclusion, the district court sentenced Lambert to 80
months’ imprisonment, a within-guidelines range sentence,
and entered judgment against her on January 16, 2015. Lam-
bert’s appeal follows.
II. ANALYSIS
We begin with Melendez’s appeal, which disputes the
district court’s finding that he is liable for between three and
ten kilograms of jointly purchased heroin. Then, we address
Lambert’s appeal, which challenges her sentence as substan-
tively unreasonable.
A. Melendez’s Sentence
“We review the district court’s interpretation and applica-
tion of the sentencing guidelines de novo and review its fac-
tual findings for clear error.” E.g., United States v. Salem, 657
F.3d 560, 563 (7th Cir. 2011). “A factual finding is clearly er-
roneous only if after reviewing the evidence we are firmly
convinced that a mistake has been made.” Id. (internal quo-
tation marks omitted). “The district court may draw reason-
able inferences from the record in making its factual findings
at sentencing.” Id.Melendez raises two challenges to factual determinations
regarding his sentence. First, Melendez argues that the dis-
trict court erred in finding him accountable for all of the her-
oin jointly purchased by Craig and him as part of the con-
spiracy. Second, Melendez contends that the district court
calculated incorrectly the amount of heroin jointly attributa-
ble to him.
6 Nos. 14-3590 & 15-1131
1. Accountability for All Jointly Purchased Heroin
This court has held that “[f]or sentencing purposes, a
criminal defendant convicted of a drug trafficking conspira-
cy is liable for the reasonably foreseeable quantity of drugs
sold by his or her co-conspirators.” United States v. Seymour,
519 F.3d 700, 710–11 (7th Cir. 2008).
In the present case, the district court’s finding that
Melendez was accountable for all of the heroin that he and
Craig jointly purchased was supported by evidence in the
record, including Melendez’s admissions in his plea agree-
ment and his January 10, 2012 written statement, which the
district court explicitly found to contain the most reliable
facts.
Melendez pled guilty to conspiracy to distribute heroin
and therefore “is liable for the reasonably foreseeable quanti-
ty of drugs sold by his or her co-conspirators.” Seymour, 519
F.3d at 710–11. Melendez’s admissions support a finding that
Melendez reasonably foresaw the entire amount of heroin
jointly purchased by him and Craig. In fact, Melendez was
substantially involved in and had direct knowledge of the
entire amount of jointly purchased heroin because he intro-
duced Craig to their drug supplier, he traveled with Craig to
Chicago to purchase the heroin, he pooled his money with
Craig to obtain a discounted bulk rate, and he traveled with
Craig to Rockford to weigh and divide the joint purchase.
We are unpersuaded by Melendez’s argument that he
should not be held accountable for Craig’s portion of the
jointly purchased heroin because Craig distributed his por-
tion of the heroin as part of a “separate business.” Here, rea-
sonable foreseeability is the proper inquiry, and we have
Nos. 14-3590 & 15-1131 7
held that reasonable foreseeability “does not require [a
showing] that the defendant was involved in or even had di-
rect knowledge of any particular transaction.” Seymour, 519
F.3d at 711. As discussed, Melendez’s admissions support a
finding that Melendez reasonably foresaw the entire amount
of heroin jointly purchased by him and Craig. Therefore, it is
immaterial that Craig distributed his portion through a sep-
arate business venture.
Thus, the district court did not commit clear error in find-
ing Melendez accountable for all the heroin jointly pur-
chased by Craig and him.
2. Estimate of Heroin Amount
“A convicted defendant has a due process right to be sen-
tenced on the basis of accurate information.” United States v.
Bozovich, 782 F.3d 814, 817 (7th Cir. 2015) (internal quotation
marks omitted). Under this general principle, “it is well-
established that a preponderance of the evidence is all that is
required for a factual finding of drug quantity under the
Sentencing Guidelines, due process concerns notwithstand-
ing.” Id. at 818. Because determining drug quantities under
the sentencing guidelines is frequently difficult, “district
courts may make reasonable though imprecise estimates
based on information that has indicia of reliability.” Id. “[A]
district court choosing among plausible estimates of drug
quantity should normally err on the side of caution. Id. (in-
ternal quotation marks omitted). However, “a district court
does not automatically commit clear error when it fails to
use the most conservative calculation possible.” Id.8 Nos. 14-3590 & 15-1131
In the instant case, the district court used reliable infor-
mation to make two reasonable determinations of the heroin
amount attributable to Melendez.
In its first estimate, the district court used Melendez’s
admissions in his plea agreement to assess an approximate
amount of 4.8 kilograms of heroin. In his plea agreement,
Melendez admitted that he made a purchase every 2 to 3
days from approximately March 1, 2011 through November
1, 2011. From this, the district court estimated that Melendez
made a purchase, on average, every 2.5 days, or 12 times per
month, for 8 months. The district court then estimated that
each purchase involved approximately 50 grams of heroin
because, on an average trip, Melendez jointly purchased
$4000 of heroin at a rate of $80 per gram. From these figures,
the district court found that Melendez’s plea agreement
supported a reasonable determination of a total quantity of
4.8 kilograms of heroin.
In its second estimate, the district court used Melendez’s
admissions in his January 10, 2012 written statement to as-
sess an approximate amount of 3.315 kilograms of heroin. In
his written statement, Melendez admitted that he made a
purchase every 2 to 3 days from approximately February or
March 2011 through November 2011. From this, the district
court estimated that the Melendez made a purchase, on av-
erage, every 2.5 days, or 12 times per month, for 8.5 months.
The district court then estimated that each purchase in-
volved approximately 32.5 grams of heroin. From these fig-
ures, the district court found that that Melendez’s January
10, 2012 written statement supported a reasonable determi-
nation of a total quantity of 3.315 kilograms of heroin.
Nos. 14-3590 & 15-1131 9
Furthermore, both of the district court’s reasonable esti-
mates—the first for 4.8 kilograms of heroin and the second
for 3.315 kilograms of heroin—support its finding that the
amount of heroin involved in Melendez’s offense was great-
er than 3 kilograms but less than 10 kilograms. Consequent-
ly, there is no issue regarding the court’s choice “among
plausible estimates of drug quantity.” Bozovich, 782 F.3d at
818 (internal quotation marks omitted).
Melendez’s only challenge to the district court’s calcula-
tion of the amount of jointly purchased heroin relates to the
court’s assessment of the number of trips taken by Craig and
Melendez to Chicago to purchase heroin. Melendez con-
tends that the district court should have found only 2.5 trips
per week, resulting in 10 trips per month. Melendez further
argues that taking 52 weeks, dividing them into 12 months,
and multiplying the result by 2.5 trips per week equal 10.8
trips per month.
While mathematically correct, Melendez’s calculations
are based on an incorrect assertion—that the district court
found that there were 2.5 trips to Chicago per week. Instead,
relying on Melendez’s admission that he “purchased on av-
erage every two and a half days,” the district court found
that Melendez and Craig traveled to Chicago and jointly
purchased heroin “every 2.5 days,” resulting in 12 trips per
month. 1
1 The district court’s calculations were mathematically correct: (1) it used
Melendez’s admission to find that Melendez and Craig took 1 trip every
2.5 days, (2) it estimated that a month contains 30 days, (3) it divided 30
days by 2.5 days, and (4) it arrived at the result of 12 trips per month.
10 Nos. 14-3590 & 15-1131
Hence, the district court did not commit clear error in its
determination of the amount of heroin attributable to
Melendez.
B. Lambert’s Sentence
Lambert raises three arguments on appeal, each challeng-
ing her within-guidelines range sentence as substantively
unreasonable. First, she argues that the court gave insuffi-
cient weight to her reduced life expectancy and health is-
sues. Second, she contends that the court gave too much
weight to her role in the offense and prior criminal history.
Third, Lambert asserts that the court’s finding that she had a
history of noncompliance with probation and conditional
discharge, as well as a history of violating pretrial release,
was contrary to the evidence.
This court reviews “the substantive reasonableness of a
defendant’s sentence for an abuse of discretion.” United
States v. Castro-Alvarado, 755 F.3d 472, 477 (7th Cir. 2014); see
also Gall v. United States, 552 U.S. 38, 51 (2007). “We will up-
hold [a] sentence so long as the district court offered an ade-
quate statement of its reasons, consistent with 18 U.S.C.
§ 3553(a), for imposing such a sentence.” United States v. An-
noreno, 713 F.3d 352, 359 (7th Cir. 2013) (alteration in original)
(internal quotation marks omitted). The district court enjoys
discretion in assigning weights to the § 3553(a) factors. Unit-
ed States v. Smith, 721 F.3d 904, 908 (7th Cir. 2013). “True, the
weighting of the § 3553(a) factors must fall within the
bounds of reason, but those bounds are wide.” Id. (internal
quotation marks omitted).
Moreover, in this circuit, where “the district court sen-
tenced the defendant to a within-guideline range sentence,
Nos. 14-3590 & 15-1131 11
there is a presumption of reasonableness.” Castro-Alvarado,
755 F.3d at 477. “To sustain the presumption, a district court
need provide only a justification for its sentence adequate
enough to allow for meaningful appellate review and to
promote the perception of fair sentencing.” Id. (internal quo-
tation marks omitted). The fact that the appellate court
“’might reasonably have concluded that a different sentence
was appropriate is insufficient to justify reversal of the dis-
trict court.’” United States v. Scott, 555 F.3d 605, 610 (7th Cir.
2009) (quoting Gall, 552 U.S. at 51).
The defendant bears the burden of overcoming this pre-
sumption of reasonableness “by demonstrating that his or
her sentence is unreasonable when measured against the fac-
tors set forth in § 3553(a).” United States v. Vallar, 635 F.3d
271, 279 (7th Cir. 2011) (internal quotation marks omitted).
This burden is “a hefty one.” Castro-Alvarado, 755 F.3d at 477
(internal quotation marks omitted).
Here, the district court did not abuse its discretion be-
cause Lambert’s within-guidelines range sentence is pre-
sumptively reasonable, and Lambert failed to overcome this
“hefty” presumption. Id. at 477. Furthermore, the court ade-
quately explained why Lambert did not warrant a below-
guidelines range sentence. We discuss each of Lambert’s
challenges in turn.
1. Reduced Life Expectancy and Health Issues
Lambert first argues that the district court erred in not
imposing a below-guidelines range sentence given her re-
duced life expectancy and health issues. Her arguments are
without merit.
12 Nos. 14-3590 & 15-1131
At sentencing, the district court examined Lambert’s mit-
igation argument relating to her reduced life expectancy. Af-
ter noting that we have cautioned against imposing a de fac-
to life sentence, see, e.g., United States v. Wurzinger, 467 F.3d
649, 652–53 (7th Cir. 2006), the district court observed that a
middle-of-guidelines range sentence of 87 months, which
could be reduced to 74 months with good-time credit, fell
below Lambert’s life expectancy of 90 months. The court fur-
ther recognized that Lambert’s imposed sentence of 80
months, which could be reduced to 68 months with good
time credit, falls well below Lambert’s life expectancy of 90
months and was therefore not a de facto life sentence. This
discussion was sufficient for the court to rule that the situa-
tion was not “so dire as to require a sentence below the advi-
sory guidelines range in order to avoid a de facto sentence of
life imprisonment.” Lambert Sent. Tr. 29; see United States v.
Cheek, 740 F.3d 440, 456–47 (7th Cir. 2014) (affirming a with-
in-guidelines sentence over a substantive unreasonableness
challenge based on a de facto life sentence).
The district court also contemplated Lambert’s mitigation
argument based on her health issues. The court stated that
although it must consider Lambert’s medical care needs,
these considerations do not require the court to overlook or
excuse Lambert’s criminal conduct simply because she has
medical issues. The court noted that U.S.S.G. § 5H1.4 pro-
vides that “extraordinary physical impairment” may be a
reason for a downward departure, but it ruled that Lambert
did not have an “extraordinary physical impairment” or was
seriously infirm. This analysis was adequate for the court to
find that Lambert’s medical history or current medical issues
did not warrant a below-guidelines range sentence. See Unit-
Nos. 14-3590 & 15-1131 13
ed States v. Pilon, 734 F.3d 649, 656–57 (7th Cir. 2013) (affirm-
ing a within-guidelines range sentence over a substantive
unreasonableness challenge based on health issues).
Thus, the district court did not abuse its discretion in
finding that Lambert’s reduced life expectancy and health
issues did not warrant a downward variance.
2. Role in Offense and Prior Criminal History
Lambert next contends that the court erred in not impos-
ing a below-guidelines range sentence for her lesser role in
the heroin conspiracy and prior criminal history. These con-
tentions fail.
The district court considered Lambert’s mitigation argu-
ment regarding her limited role in the heroin conspiracy and
acknowledged that Lambert did not directly purchase, mix,
or sell heroin to customers. At the same time, the court noted
that Lambert also had admitted to the following: she rented
an apartment and vehicles for Craig which were used to
store and transport heroin and heroin trafficking proceeds,
she delivered heroin mixtures and heroin trafficking pro-
ceeds between Craig and his co-conspirators, and she trans-
mitted messages between Craig and a confidential inform-
ant. The court’s discussion was enough to find that even
though Lambert played a subservient and lesser role, “it
does not show that her role within the overall conspiracy
was minor or would otherwise provide her with mitigation
for her criminal conduct.” Lambert Sent. Tr. 33; see also Unit-
ed States v. Townsend, 520 F. App’x 473, 475–76 (7th Cir. 2013)
(affirming a within-guidelines range sentence over a sub-
stantive unreasonableness challenge based on a lesser role in
a conspiracy).
14 Nos. 14-3590 & 15-1131
The district court also addressed Lambert’s mitigation
argument relating to her prior criminal history. The court ob-
served that although Lambert’s last criminal conviction oc-
curred in 2004, she had been involved in a heroin conspiracy
since then. Furthermore, the court determined that Lambert
presented a risk to the public because her criminal conduct
had escalated from theft-based offenses to involvement in a
large-scale drug conspiracy, and it cited specific and general
deterrence rationales. Thus, the court was appropriately jus-
tified in not finding a basis for a below-guidelines range sen-
tence on account of Lambert’s criminal history. See United
States v. Marin-Castano, 688 F.3d 899, 904–05 (7th Cir. 2012)
(affirming a within-guidelines range sentence over a sub-
stantive unreasonableness challenge based on a limited crim-
inal history).
Accordingly, the district court did not abuse its discretion
in finding that Lambert’s role in the conspiracy and prior
criminal history did not warrant a downward variance.
3. Probation, Conditional Discharge, Pretrial Release History
Lambert last asserts that the court’s determination that
she had a history of noncompliance with probation and con-
ditional discharge, as well as a history of violating pretrial
release, was contrary to the evidence. These assertions are
unpersuasive.
Lambert argues that she only violated probation on three
occasions and she fully complied the other nine times. This
argument fails, however, because these three violations oc-
curred over an extended period of time—when Lambert was
24, 26, and 31 years old—which evidences a history of non-
compliance. More importantly, the record shows that for
Nos. 14-3590 & 15-1131 15
over a decade, Lambert repeatedly committed new offenses
while serving multiple terms of court supervision, further
supporting a finding of a history of noncompliance. 2 As
such, the court’s conclusion that Lambert had a history of
noncompliance with probation and conditional discharge is
more than reasonable.
In addition, Lambert contends that all of her pretrial vio-
lations were sufficiently explained, they did not result in any
sanctions, and they led the department to support increas-
ingly relaxed conditions of pretrial release. But, this argu-
ment is unpersuasive because the evidence demonstrates
multiple violations of pretrial release—she violated curfew
three times, she failed to appear for a drug test once, and she
tested positive for cocaine twice. The fact that these viola-
tions were explained and sanction-free does not foreclose a
finding of a history of pretrial violations. Thus, the court’s
assessment that Lambert had a history of violations of pre-
trial release was appropriate.
Consequently, the record supports the district court’s de-
termination that Lambert had a history of noncompliance
with probation and conditional discharge, as well as a histo-
2 While serving one year of probation for a retail theft conviction entered
March 16, 1982, Lambert committed theft on July 13, 1982. While serving
one year of probation for battery entered October 22, 1984, she commit-
ted felony disorderly conduct on November 15, 1984. While serving 12
months of conditional discharge for two retail theft convictions entered
May 1, 1989, she committed retail theft on August 4, 1989. While on one
year of probation for a deceptive practice conviction entered April 23,
1997, she committed attempted obstruction of justice and possession of
drug paraphernalia on March 5, 1998. While serving 60 months of proba-
tion for a retail theft conviction entered January 28, 2000, she committed
several driving offenses.
16 Nos. 14-3590 & 15-1131
ry of violating pretrial release. Furthermore, the court did
not abuse its discretion in relying on this aggravating factor
to impose a within-guidelines range sentence.
III. CONCLUSION
For the foregoing reasons, Melendez’s and Lambert’s sen-
tences are AFFIRMED.