United States v. Orozco-Vasquez ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3920
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ARTURO OROZCO-VASQUEZ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05 CR 87—Rudolph T. Randa, Chief Judge.
____________
ARGUED MAY 5, 2006—DECIDED DECEMBER 5, 2006
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Before KANNE, WOOD, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Arturo Orozco-Vasquez pleaded
guilty to being an illegal alien in possession of a firearm
in violation of 18 U.S.C. § 922(g)(5) and illegal reentry
in violation of 8 U.S.C. § 1326(a), and then went to trial on
a third charge of possession with intent to distribute more
than 500 grams of cocaine in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B). The jury found him guilty and the
chief district judge sentenced him to a prison term of 120
months (concurrent with terms of 63 and 24 months on
the gun and illegal reentry counts). This was 42 months
more than the high end of the advisory sentencing guide-
lines range of 63-78 months. Orozco-Vasquez appeals his
conviction and sentence. He claims there was insufficient
2 No. 05-3920
evidence to convict him and that the chief judge made
erroneous factual findings that led to an unreasonable
sentence.
We affirm. The evidence against Orozco-Vasquez on the
drug count was plentiful and strong, easily enough to
support the conviction. We also have no difficulty con-
cluding that Orozco-Vasquez’s above-guidelines sentence is
reasonable. To the extent that Orozco-Vasquez attacks the
fact-finding underlying the chief judge’s upward variance,
the effort is misplaced. There is a difference between formal
factual findings and judicial observations that explain
conclusions about sentencing factors, and Orozco-Vasquez
has confused the two.
I. Background
Late one November night in 2004, several Milwaukee
police officers went to a duplex on the south side of the
city acting on a tip that Orozco-Vasquez—wanted on an
outstanding warrant for failing to report for a prior
sentence—was in the house. Officer Todd Bohlen knocked
on the back door of the duplex. Fernando Campos-Ruiz (who
became a codefendant in this case) came out onto a porch off
the upstairs unit and asked who was knocking. When the
police identified themselves, Campos-Ruiz went back inside.
Moments later a young girl from the downstairs unit let the
officers into the common hallway and directed them to the
upstairs unit. Some officers waited outside the duplex,
taking up positions around the property. As Bohlen and his
partner climbed the stairs to the upper unit, officers outside
shouted that items were being thrown from the upper unit.
Those items, it turns out, were 250-gram balls of cocaine.
Bohlen knocked on the door of the upper apartment,
announcing his presence forcefully. He heard people
scrambling around inside and the sound of a heavy object
No. 05-3920 3
being dropped. After calling for backup, Bohlen made a
forced entry.
Bohlen entered the apartment and heard the sound of
“[w]ater blasting out of a tub faucet.” Orozco-Vasquez
emerged from the bathroom with his hands up, soaking wet
and fully dressed. He left the tub faucet on, blasting hot
water, with the drain open. Bohlen immediately noticed the
strong odor of cocaine in the bathroom. In a bedroom
directly across the hall from the bathroom, officers found an
electronic scale, a knife with cocaine residue, two bottles of
inositol (a cocaine cutting agent), a roll of plastic wrap, a
box of dryer sheets, a roll of gray duct tape, and a ball of
cocaine wrapped in duct tape. Orozco-Vasquez’s fingerprints
were found on the scale and one of the bottles of inositol.
From outside the duplex, officers recovered three balls of
cocaine, all wrapped in either duct tape or masking tape,
and one wrapped with a dryer sheet under the tape. The
cocaine in all three packages was cut with 50-60% inositol.
Officers also found cocaine in the kitchen and a cocaine
press designed to press ½- or 1-kilogram bricks of cocaine in
the attic. In all, police recovered at least four packages of
cocaine weighing 250 grams each.
Based on the foregoing evidence, the jury convicted
Orozco-Vasquez on the drug count (as we have noted, he
entered guilty pleas to being an illegal alien in possession
of a firearm and illegal reentry after removal). The sentenc-
ing guidelines recommended a sentence of 63-78 months,
but Chief Judge Randa did not think that sentence long
enough. The chief judge explicitly considered several of the
factors in 18 U.S.C. § 3553(a), including the nature and
circumstances of the offense, the history and characteristics
of the defendant, and the need for deterrence and protection
of the public.
The chief judge rejected Orozco-Vasquez’s claim that he
was an innocent bystander in a drug house rather than a
large-scale drug dealer and long-standing member of the
4 No. 05-3920
Mexican Posse street gang, as the government main-
tained. Beyond the trial evidence and the jury’s verdict, the
chief judge pointed to the government’s presentation
at sentencing of earlier, unrelated wiretapped conversations
in which Orozco-Vasquez is heard using language the judge
recognized as coded drug trafficking lingo. The chief judge
also entered what he characterized as “a finding” that “the
drugs that Mr. Campos-Ruiz saw you take into the bath-
room [were] . . . flushed down the bathtub.” This was a
reference to a statement in the Presentence Report that
Campos-Ruiz reported seeing Orozco-Vasquez enter the
bathroom and come out soaking wet.
Chief Judge Randa also rejected Orozco-Vasquez’s claim
that he left the Mexican Posse in 1997, citing Orozco-
Vasquez’s concealed weapons arrest in 2000 while he was in
the company of two members of the Mexican Posse, as well
as several photographs in which Orozco-Vasquez is seen
flashing gang signs with several other members of the
Mexican Posse as late as 2003. The chief judge was likewise
skeptical about Orozco-Vasquez’s explanation of an injury
he sustained in 1997 when he was shot in the head. Accord-
ing to Orozco-Vasquez, his neighbor stole his car, and when
Orozco-Vasquez went after the neighbor, he was shot in the
head. Based on Orozco-Vasquez’s acknowledged Mexican
Posse membership in 1997, the chief judge thought it more
likely that Orozco-Vasquez was shot in the head as a result
of some gang-related activity.
Overall, the chief judge’s impression was that Orozco-
Vasquez was a “deceiver,” a “liar,” and a “scofflaw,” and he
doubted that anything Orozco-Vasquez said could be
believed. The chief judge cited Orozco-Vasquez’s use of
an alias to elude law enforcement as evidence of his decep-
tive nature. He also noted Orozco-Vasquez’s history of
illegal reentries into this country using a false name
and the fact that Orozco-Vasquez has violated the law
several times and failed to report for a six-month work-
No. 05-3920 5
release sentence on the state concealed weapons offense
(this was the warrant that brought the police to the
duplex looking for Orozco-Vasquez).
The chief judge also discussed the need for the sentence to
promote respect for the law, protect the public, and deter
Orozco-Vasquez from breaking the law again. Because of his
pattern of illegal entries into this country, efforts to elude
law enforcement by use of an alias, repeated crimes, and
failure to report for the prior work-release sentence, Chief
Judge Randa concluded that the law has had little deter-
rent effect on Orozco-Vasquez. Based on the foregoing, the
chief judge stated that a short sentence followed by deporta-
tion presented too great a risk that Orozco-Vasquez would
again illegally reenter and resume drug dealing. The chief
judge sentenced Orozco-Vasquez to 120 months in prison on
the drug count and concurrent terms of 63 and 24 months,
respectively, on the gun and illegal reentry counts.
II. Discussion
A. Sufficiency of the Evidence
Orozco-Vasquez argues there was insufficient evidence to
find him guilty beyond a reasonable doubt of possession
with intent to deliver over 500 grams of cocaine. Insuffi-
ciency of the evidence arguments are hard to win. See, e.g.,
United States v. Moore, 425 F.3d 1061, 1072 (7th Cir.
2005) (calling the hurdle “ ‘nearly insurmountable’ ” (quot-
ing United States v. Frazier, 213 F.3d 409, 416 (7th Cir.
2000)). We do not weigh the evidence or assess the credibil-
ity of witnesses. Instead, we view the evidence in a light
most favorable to the government and reverse only when
there is no evidence, no matter how it is weighed, from
which a rational jury could find guilt beyond a reason-
able doubt. United States v. Johnson, 437 F.3d 665, 674 (7th
Cir. 2006).
6 No. 05-3920
To convict Orozco-Vasquez under 21 U.S.C. § 841(a)(1),
the government had to prove that he “(1) knowingly or
intentionally possessed cocaine (2) with the intent to
distribute it (3) while knowing it was a controlled sub-
stance.” United States v. Starks, 309 F.3d 1017, 1022 (7th
Cir. 2002). Orozco-Vasquez challenges only whether he
possessed cocaine, arguing that the evidence does not
support the jury’s verdict that he did. He maintains that
since the government did not catch him cocaine-in-hand,
it has not established possession.
The government need not show actual possession to
convict Orozco-Vasquez; constructive possession will suffice.
Id. The government can prove constructive possession by
showing Orozco-Vasquez had the authority to possess and
determine the disposition of the drugs. United States v.
Harris, 325 F.3d 865, 869 (7th Cir. 2003); Starks, 309 F.3d
at 1022. Constructive possession need not be exclusive so
long as there is a nexus between the defendant and the
drugs. Harris, 325 F.3d at 869.
The government introduced sufficient evidence from
which a rational jury could find possession. The police
caught Orozco-Vasquez very nearly red-handed. As Officer
Bohlen entered the apartment, Orozco-Vasquez emerged
from the bathroom fully dressed but soaking wet. The drain
on the tub was wide open, and hot water remained running
as Orozco-Vasquez came out. Officer Bohlen described the
strong odor of cocaine in the bathroom. Bohlen also testified
that in his experience as a narcotics officer, suspects often
try to flush cocaine down drains with hot water because hot
water dissolves cocaine faster than cold.
The apartment was littered with trappings of the
cocaine trade. Police found an electronic scale and a bottle
of inositol bearing Orozco-Vasquez’s fingerprints. Near
those items police recovered a knife with cocaine residue on
it, a roll of plastic wrap, a roll of gray duct tape, a box of
No. 05-3920 7
dryer sheets (used to suppress the smell of wrapped
cocaine), and a ball of cocaine wrapped in gray duct tape. In
the attic of the apartment, police found a cocaine press
designed to press ½- and 1-kilogram bricks of cocaine.
Officers also recovered three balls of cocaine they wit-
nessed being thrown from the windows of the apartment
when they arrived—two wrapped in gray duct tape. All
three balls of cocaine weighed about 250 grams and con-
tained 50-60% inositol; at least one of the balls of cocaine
was lined with a dryer sheet. Taken with its reasonable
inferences, this evidence is sufficient for a jury to find
constructive possession and to find Orozco-Vasquez guilty
beyond a reasonable doubt.
B. Sentencing
Chief Judge Randa sentenced Orozco-Vasquez to 120
months in prison because he concluded the guidelines range
of 63-78 months was insufficient. Since United States v.
Booker, 543 U.S. 220 (2005), we review sentences for
reasonableness. Id. at 260-61. Sentences within the prop-
erly calculated advisory guidelines range are presumed
reasonable. United States v. Mykytiuk, 415 F.3d 606, 608
(7th Cir. 2005). Sentences outside the guidelines range,
however, are entitled to no presumptions; they will be
affirmed as reasonable if the sentencing judge articulates
appropriate supporting justification under the sentencing
factors specified in 18 U.S.C. § 3553(a). United States v.
Cunningham, 429 F.3d 673, 675 (7th Cir. 2005); United
States v. Johnson, 427 F.3d 423, 427 (7th Cir. 2005). The
more the sentence varies from the guidelines range, the
more compelling the justification must be. United States v.
Dean, 414 F.3d 725, 729 (7th Cir. 2005).
Orozco-Vasquez challenges the reasonableness of his
sentence by arguing that the chief judge based it on errone-
8 No. 05-3920
ous factual findings. Explicit findings on the facts that
influence the decision to sentence outside the guidelines
range are not required unless a particular fact is contested
and central to the district judge’s choice of sentence.
Johnson, 427 F.3d at 427; Dean, 414 F.3d at 730. Factual
findings are reviewed the same way as before Booker—for
clear error. United States v. Robinson, 435 F.3d 699, 701
(7th Cir. 2006). Factual findings are clearly erroneous only
if we are firmly convinced after we review all of the evi-
dence that a mistake has been made. United States v.
Wilson, 437 F.3d 616, 621 (7th Cir. 2006).
Orozco-Vasquez argues that several of Chief Judge
Randa’s statements during sentencing constitute clearly
erroneous “factual findings.” Specifically, he challenges:
1) the chief judge’s “finding” that “the drugs Mr. Campos-
Ruiz saw [Orozco-Vasquez] take into the bathroom [were]
being flushed down the bathtub”; 2) the chief judge’s
observation that Orozco-Vasquez used recognizable “drug
language” in recorded conversations; 3) the chief judge’s
comment that Orozco-Vasquez’s 1997 gunshot wound
was more likely attributable to a gang-related incident than
a car theft; and 4) the chief judge’s remark that Orozco-
Vasquez did not report to serve a six-month work-release
sentence for a state concealed weapons conviction.
We note preliminarily that not every fact-based statement
a judge makes at sentencing is a “factual finding.” Much of
what a judge says in imposing and explaining a sentence
consists of observations and assessments that form the
basis of the judge’s consideration of the § 3553(a) sentenc-
ing factors. Sentencing post-Booker requires the sentencing
judge to properly calculate the advisory guidelines range in
the same manner as before Booker and then to make a
discretionary decision whether to sentence the defendant
within the advisory range or outside it in light of the very
broadly stated sentencing factors set forth in § 3553(a).
Robinson, 435 F.3d at 700-01; Cunningham, 429 F.3d at
No. 05-3920 9
675-76. The second step is an evaluative process by which
the judge considers the particular statutory factors that
inform the sentence he has decided to impose. We have held
that the “duty to consider the statutory factors is not a duty
to make findings.” Dean, 414 F.3d at 729-30. Judicial
observations about such factors as the nature and serious-
ness of the offense, § 3553(a)(1) and (2)(A), the characteris-
tics of the defendant, § 3553(a)(1), and the need to protect
the public, § 3553(a)(2)(C), are not “facts” requiring “find-
ings,” as when the judge calculates the guidelines range. As
we have noted, only where a particular fact is contested
and “decisive to the choice of sentence” must there be
explicit fact-finding to support the judge’s exercise of
sentencing discretion.
In this case the chief judge examined the nature and
circumstances of Orozco-Vasquez’s crimes, his history and
characteristics, and the need to protect the public from
further crimes—just as § 3553(a) directs. The chief judge
characterized Orozco-Vasquez as a large-scale drug
dealer, a liar, and a scofflaw for whom the law and previous
punishment had served as no deterrent. The judge noted
that Orozco-Vasquez stood convicted of possession with
intent to distribute a significant amount of cocaine, that he
flushed cocaine down the bathtub drain in an effort to
destroy the evidence, and that he was heard us-
ing recognizable drug code language in wiretapped con-
versations.
Orozco-Vasquez first assigns error to the chief judge’s
“finding” (that is how the judge characterized it) “that the
drugs Mr. Campos-Ruiz saw [Orozco-Vasquez] take into the
bathroom [were] being flushed down the bathtub.” It is true
that Campos-Ruiz did not say he saw Orozco-Vasquez take
drugs into the bathroom, only that he saw him go into the
bathroom and come out soaking wet. But the thrust of the
chief judge’s comment was that Orozco-Vasquez was caught
10 No. 05-3920
in the act of destroying the cocaine evidence—a point that
is beyond dispute on this record. Even if the chief judge
mistakenly “found” that Campos-Ruiz saw Orozco-Vasquez
take drugs into the bathroom, the error was clearly harm-
less.
The chief judge’s observation that Orozco-Vasquez used
coded drug lingo in the wiretapped conversations was
directed at Orozco-Vasquez’s claim to have been an innocent
bystander in a drug house, not a significant drug dealer as
the government maintained. An affidavit from a narcotics
officer that accompanied the transcript of the taped conver-
sations identified the passages in question as “possible” or
“probable” drug references. The chief judge said he had
heard coded “drug talk” like this many times before. This
was not a factual finding. It was, instead, part of the chief
judge’s explanation for his rejection of Orozco-Vasquez’s
implausible assertion that he was not a large-scale drug
dealer. Although we have cautioned district courts to be
careful about equating the use or knowledge of drug slang
with drug dealing, see United States v. Harrison, 431 F.3d
1007, 1012 (7th Cir. 2005), the chief judge’s interpretation
of the wiretapped conversations was entirely reasonable in
the context of the overwhelming evidence in this case.
Orozco-Vasquez also challenges the chief judge’s comment
that the 1997 shooting in which Orozco-Vasquez was
injured probably occurred during a gang-related incident
rather than an auto theft. Once again, this comment
must be considered in its context, that is, as part of the
chief judge’s explanation for characterizing Orozco-Vasquez
as a liar and a long-standing member of the Mexican Posse.
After citing the reasons he felt Orozco-Vasquez could not be
believed—his illegal reentries, use of a false name, denial
of drug connections and continuous Mexican Posse member-
ship despite very strong evidence to the contrary—the chief
judge said there was reason to doubt everything Orozco-
Vasquez had to say. The chief judge then explained that he
No. 05-3920 11
could not believe Orozco-Vasquez’s story about being shot
in the head by a neighborhood car thief; the judge thought
the more reasonable inference was that the shooting
occurred during some sort of gang dispute. The chief judge’s
take on Orozco-Vasquez’s story was not a factual finding.
Rather, it was an expression of the judge’s extreme skepti-
cism about Orozco-Vasquez’s credibility.
Finally, Orozco-Vasquez attacks the chief judge’s com-
ment that he was an “absconder” who “didn’t show up” to
serve his work-release sentence on the state gun conviction.
He argues that the record is silent on the matter of whether
he ever actually served the sentence, so the chief judge’s
“finding” that he “failed to serve” the sentence is clearly
erroneous. This argument misses the point. The chief
judge’s comment came as he was explaining why he thought
the law had not had a sufficient deterrent effect on Orozco-
Vasquez. There is no dispute that a warrant was issued for
failure to report for this sentence, and the chief judge
thought this demonstrated “total and complete disregard for
the law,” in combination with Orozco-Vasquez’s illegal
reentries and use of an alias. Orozco-Vasquez does not
argue explicitly that he did serve this sentence and that the
warrant was issued in error. The chief judge’s assessment
that Orozco-Vasquez had shown habitual disrespect for the
law was hardly unreasonable.
Beyond the foregoing misplaced claims of erroneous “fact-
finding,” Orozco-Vasquez has not argued that his above-
guidelines sentence was otherwise unreasonable. Sentences
above or below the guidelines range are reasonable so long
as the district judge provides satisfactory justification,
consistent with the factors in § 3553(a), for varying from the
range. Johnson, 427 F.3d at 426. Though he need not have
run through the § 3553(a) factors like a checklist, see Dean,
414 F.3d at 729, Chief Judge Randa commendably struc-
tured his sentencing comments around the specific factors
listed in § 3553(a), which makes review for reasonableness
12 No. 05-3920
easier. The chief judge made a compelling case for giving
Orozco-Vasquez a lengthier sentence than the guidelines
recommended. Orozco-Vasquez was dealing cocaine in
significant quantities, has shown chronic disrespect for the
law, and his previous punishment has had little or no effect
on his behavior. He has entered the country illegally and
been removed, only to reenter illegally again. He has a
history of gun possession and did not report to serve a six-
month sentence for possession of a concealed weapon.
Under these circumstances, it was not unreasonable for the
chief judge to think a longer sentence was required to deter
Orozco-Vasquez from further crimes and to protect the
public.
Orozco-Vasquez’s conviction and sentence are AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-5-06