United States v. Payan, Baldemar , 182 F. App'x 560 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 4, 2006
Decided May 30, 2006
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
No. 05-2939
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Eastern District of
Wisconsin
v.
No. 04 CR190
BALDEMAR PAYAN,
Defendant-Appellant. J. P. Stadtmueller,
Judge.
ORDER
Baldemar Payan pleaded guilty, pursuant to a written agreement, to
conspiring to distribute more than 50 grams of crack cocaine, 5 kilograms or more of
cocaine, and marijuana, 21 U.S.C. §§ 846, 841. The district court sentenced him to
235 months’ imprisonment, five years’ supervised release, and ordered him to pay a
$1,000 fine and a $100 special assessment. Payan appeals, arguing that the district
court erred by applying a leader/organizer enhancement to his guidelines
calculation. We affirm.
Payan stated in his plea agreement that he and an associate, Adolf Alvarez,
operated a cocaine, crack cocaine, and marijuana distribution business in
No. 05-2939 Page 2
Wisconsin. They paid three individuals to receive Federal Express packages
containing cocaine from Texas, drive drug-laden trucks from Texas, and travel via
Greyhound bus with drugs strapped to their bodies. Payan enlisted a fourth
individual to process the powdered cocaine into crack cocaine.
The conspiracy began to unravel when two of Payan’s couriers, Thadeus
Bartoszuk and Danielle Druktenis, were arrested for possessing crack cocaine. The
couriers, cooperating with officials, declined a request by Payan to transport cocaine
from Texas to Wisconsin, forcing Payan, Alvarez, and their girlfriends to travel to
Texas themselves. Before leaving, Alvarez delivered 5 pounds of marijuana to the
couriers, who surrendered the drugs to officials. A subsequent controlled delivery of
the marijuana led to the arrest of Payan and Alvarez.
The district court accepted Payan’s plea agreement. In a presentence report,
a Probation Officer argued Payan should receive a leader/organizer enhancement
under U.S.S.G. § 3B1.1 because he “recruited at least five individuals to transport
the cocaine and ‘cook’ the cocaine into crack cocaine.” The report recommended that
the court sentence Payan based on an overall offense level of 35 and a criminal
history level of IV, yielding a sentencing range of 235 to 293 months’ imprisonment.
Payan conceded at sentencing that “we understand how [the sentencing
calculations] were arrived at and believe that they are accurately calculated within
the context of the guidelines. But, of course, do not agree that that should control
sentencing.” Notably, Payan’s counsel explicitly abandoned any specific challenge
to the sentencing calculation—including the leader/organizer enhancement—and
instead chose to seek leniency by attacking the reasonableness of the sentence:
You know, there’s a factual, legal basis for the recommended basis in the
guidelines. Mr. Payan and I could perhaps ineffectively quibble about, you
know, the double, triple counting of his prior offense. But, of course, that’s
allowed. We could quibble about the number of points somebody gets for
being a little more of a director, a little less of a director of an enterprise. But
the bottom line is that looking at the prospect of 293 months in jail seems to
me to be excessive.
The court, though, rejected leniency and sentenced Payan to 235 months, the
bottom of his guidelines range.
Here, Payan argues that the district court erred when it applied the four-
level leader/organizer enhancement.1 He begins with the assertion that, based on
1
Payan’s brief also includes an undeveloped argument that his sentence is
(continued...)
No. 05-2939 Page 3
his plea agreement, he expected a “maximum exposure of a little more than fifteen-
and-a-half years.” Thus, he argues, his sentence of almost 20 years “should have
required the Government to present evidence that proved beyond a reasonable
doubt that the Defendant was a leader/organizer in the drug conspiracy—a factor to
which he did not plead guilty or stipulate.”
We review a sentencing court’s factual findings for clear error and its
application of those facts to the guidelines de novo. See United States v. Arnaout,
431 F.3d 994, 998 (7th Cir. 2005); United States v. Turner, 400 F.3d 491, 500 (7th
Cir. 2005). Payan, however, waived any challenge to the district court’s decision to
apply the leader/organizer enhancement. See United States v. Sensmeier, 361 F.3d
982, 986-87 (7th Cir. 2004). In the district court, counsel conceded that Payan’s
guideline range was properly calculated and explicitly acknowledged that the
leader/organizer enhancement could be a basis for a sentencing challenge. Rather
than pursue that argument, however, counsel challenged only the reasonableness of
the sentence. Thus, there was a clear waiver and the issue is foreclosed on appeal.
Payan argues that we should look past his waiver because he was sentenced
shortly after the Supreme Court’s decision in United States v. Booker, 543 U.S. 220(2005). Even if the uncertainty following Booker caused counsel to forfeit, rather
than waive, particular guidelines arguments in favor of a general attack on the
reasonableness of Payan’s sentence, Payan’s arguments fail on the merits. Payan
first argues that the district court erred by not holding an evidentiary hearing. But
he complains only that the facts in the plea agreement did not support the
enhancement. An evidentiary hearing is necessary only to resolve disputes of
material fact, see United States v. Villegas, 388 F.3d 317, 324 (7th Cir. 2004), which
Payan does not allege. Payan next argues that the government should have been
required to prove beyond a reasonable doubt that he was a leader/organizer. But
we have, even after Booker, repeatedly observed that sentencing factors are decided
by a preponderance of the evidence. See, e.g., United States v. Garcia, 439 F.3d 363,
369 (7th Cir. 2006); United States v. Robinson, 435 F.3d 699, 701 (7th Cir. 2006).
1
(...continued)
unreasonable because the district court did not consider the factors described in 18
U.S.C. § 3553(a). Beyond asserting that the court should have considered his
“involvement in the offense, his personal history, need for treatment, and criminal
history,” Payan does not describe the factors as they pertain to him or how they should
have affected his sentence. Thus the argument, which is not even presented in the
brief’s summary of the argument section, is waived. See Weinstein v. Schwartz, 422
F.3d 476, 477 n.1 (7th Cir. 2005); United States v. Holm, 326 F.3d 872, 877 (7th Cir.
2003) (enforcing waiver in criminal context).
No. 05-2939 Page 4
Finally, though the argument is undeveloped and thus waived, see United
States v. Holm, 326 F.3d at 877 (waiver of undeveloped arguments “is true even in
the criminal context”); United States v. Berkowitz, 927 F.2d 1376, 1384 (7th Cir.
1991) (same), we observe that Payan’s sentence is reasonable. The district court
sentenced him to 235 months’ imprisonment, at the bottom of his guideline range.
That sentence is presumptively reasonable, see United States v. Mykytiuk, 415 F.3d
606, 608 (7th Cir. 2005), and Payan does not point to any 18 U.S.C. § 3553(a) factor
to undermine that presumption. At argument he generally asserted that the
district court erred by not thoroughly discussing the reasonableness of his sentence,
but the court properly calculated his guideline range (which Payan conceded),
recognized that the guidelines were advisory, considered his plea for leniency, and
ultimately concluded that the need to deter drug crime justified the sentence
suggested by the guidelines. The court’s discussion does not give Payan any basis to
challenge the reasonableness of his sentence.
AFFIRMED.