United States v. Aristeo Gallardo Ramirez ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 13, 2019
Decided December 16, 2019
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18-2798
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 1:17-cr-00291-1
ARISTEO GALLARDO-RAMIREZ,
Defendant-Appellant. Manish S. Shah,
Judge.
ORDER
Aristeo Gallardo-Ramirez contests the district court’s imposition of a 120-month
sentence after he pleaded guilty to one count of conspiracy to sell heroin. He contends
that the district court wrongly denied him safety-valve relief under 18 U.S.C. § 3553(f),
which would have permitted a shorter sentence, because the government ended the
safety-valve proffer early, preventing him from relaying everything he knew about the
drug-distribution conspiracy and related criminal conduct. We see the facts differently,
however, and conclude that the district court did not clearly err by finding that
Gallardo-Ramirez was not entirely forthcoming as required by § 3553(f), and regardless,
any such error would be harmless. We therefore affirm.
No. 18-2798 Page 2
I
In March 2016 Gallardo-Ramirez received two kilograms of heroin from his
supplier, but he returned it because it was of poor quality. He then arranged to meet his
supplier to pick up better product. He and his brother drove to the pickup location, and
Gallardo-Ramirez left the car. His brother then picked up the supplier who had a
backpack containing several individually wrapped packages. After a while, the supplier
got out of the car but left the backpack in the center console. Officers then approached
the car, searched it, and discovered that the backpack contained packages weighing
10.599 kilograms in total and containing 1.8 kilograms of heroin. Gallardo-Ramirez
ultimately pleaded guilty to one count of conspiracy to possess with intent to distribute
heroin in violation of 21 U.S.C. §§ 841(a)(1)(A) and 846.
At his change-of-plea hearing, Gallardo-Ramirez acknowledged that he agreed to
distribute at least 1.8 kilograms of heroin. But when asked whether “throughout [his]
participation in the agreement” the conspiracy involved 6.8 kilograms of heroin,
Gallardo-Ramirez answered: “With regards to what was mine, it was 1.8. With the
others, I never knew anything about it or ever touched it.” He soon contradicted
himself, though, by saying that there was more heroin involved “in the group” than
what he “personally touched.” Gallardo-Ramirez also denied that his brother was
involved in the conspiracy. Later, his brother admitted in his own plea agreement that
on five separate occasions, he delivered a kilogram of heroin for Gallardo-Ramirez.
In connection with the Probation Office’s preparation of the Presentence
Investigation Report, the government provided a version of the offense conduct stating
that Gallardo-Ramirez continued to be involved with drug dealing after the police
seized the 1.8 kilograms of heroin in March 2016. Specifically, on December 9, 2016,
officers saw someone enter and then exit Gallardo-Ramirez’s house. That person then
stepped into Gallardo-Ramirez’s car, drove it down the street, got out of the car with a
package containing a kilogram of heroin, and sold it. The PSR also noted that “all
parties” had agreed that “the offense involved at least 6.8 kilograms” of heroin. On that
basis, the Probation Office calculated a base offense level of 32 under U.S.S.G. § 2D1.1
(for quantities between three and ten kilograms of heroin). The Probation Office did not
recommend the two-level increase for obstruction of justice urged by the government.
When combined with Gallardo-Ramirez’s criminal history category of I, the
resulting advisory guidelines range was 97 to 121 months’ imprisonment. Because
No. 18-2798 Page 3
Gallardo-Ramirez admitted during his plea that he was responsible for at least one
kilogram of heroin, his conviction carried a statutory minimum sentence of 120 months’
or 10 years’ imprisonment. See 21 U.S.C. § 841(b)(1)(A)(i).
As a first-time offender, Gallardo-Ramirez was eligible to pursue safety-valve
relief under 18 U.S.C. § 3553(f). That statute would have allowed the district court to
impose a sentence below the statutory minimum if Gallardo-Ramirez met certain
criteria. At issue in this appeal is whether Gallardo-Ramirez satisfied § 3553(f)(5), which
requires that he provide the government with “all the information or evidence” he had
about “the offense or offenses that were part of the same course of conduct or of a
common scheme or plan.”
Gallardo-Ramirez met with the government to provide information to satisfy the
safety-valve requirement. The record contains no transcript or notes of the proffer
session. All we know about what transpired comes from the parties’ statements during
the sentencing hearing, which took place a few days later. The government told the
district court that, in its view, Gallardo-Ramirez was not entirely truthful and
forthcoming regarding the full scope of his offense conduct and knowledge of others’
conduct. Gallardo-Ramirez’s attorney admitted that his client “may have had more
information,” but asserted that he was unable to share it because he “kept being
interrupted.” His attorney also underscored that Gallardo-Ramirez did provide some
information, including the name of two associates and the fact that he “made transfers
in Kentucky.”
At the district court’s request, the government elaborated on why it thought that
Gallardo-Ramirez had been less than forthcoming in the proffer. First, it noted that
Gallardo-Ramirez said he thought there was only one kilogram of heroin in the
backpack the police seized in March 2016. But the government had phone records
showing that Gallardo-Ramirez knew that the backpack contained eleven one-kilogram
packages. Second, the government stated that Gallardo-Ramirez’s denial of any drug
dealing after March 2016 was inconsistent with its observations that someone was
dealing drugs out of his home just nine months later, in December. Third, the
government said that it knew Gallardo-Ramirez had taken multiple trips to Milwaukee
to deal drugs, but he denied doing so in the safety-valve proffer. After some prodding,
the government added, Gallardo-Ramirez did admit that he knew Jose Reyes (one of
the conspiracy’s Milwaukee customers) but said he did not remember ever delivering
drugs to him.
No. 18-2798 Page 4
The district court invited Gallardo-Ramirez to respond to the government’s
account of what transpired at the proffer. In particular, the court sought an explanation
about the government’s contention that Gallardo-Ramirez lied about continuing to deal
drugs, since the December 2016 incident was described in the PSR and Gallardo-
Ramirez had not objected to it earlier in the hearing. His attorney said that these alleged
omissions were nothing more than honest mistakes. He said that Gallardo-Ramirez
admitted at the proffer meeting that he had sold drugs to Reyes and merely forgot the
dates on which he did so. He also said that Gallardo-Ramirez knew that there were
more drugs in the backpack, just not “the exact amount.” As for the government’s
contention that Gallardo-Ramirez was still dealing drugs in December 2016, the
attorney responded that “I don’t think we ever got to that in the discussion,” and then
that he did not “have any comment on it.”
The district court then asked which party terminated the proffer. The prosecutor
said that the government ended the proffer after 90 minutes, because it did not seem to
be progressing well. The government explained that Gallardo-Ramirez identified only
one supplier and otherwise was not forthcoming about other customers.
Based on this exchange, the district court concluded that Gallardo-Ramirez was
not completely forthcoming as required by § 3553(f), and therefore was not eligible for
safety-valve relief. As the district court saw things, “while Mr. Gallardo-Ramirez did
provide some information … when pressed for additional information, that additional
information was not forthcoming.” Specifically, Gallardo-Ramirez had provided an
“insufficient lack of detail” about “the other potential participants’ source of supply and
downstream customers.” The district court also found that Gallardo-Ramirez had not
been honest, especially with respect to “the notion that he denied continuing [to sell
drugs] after March 2016,” which was “just not true,” according to the PSR.
The district court then concluded that Gallardo-Ramirez had committed
obstruction of justice during his change-of-plea hearing by lying about the extent to
which his brother and others were involved in the conspiracy. The court then calculated
an advisory guidelines range of 151 to 188 months’ imprisonment, and ultimately
imposed the 120-month statutory minimum. The district court explained that a sentence
of that length was appropriate “based on the conduct here, the drug quantity, the
relationship to his brother, and the lack of complete honesty at the change of plea
hearing.” The judge then emphasized that, for those reasons, he would have imposed
No. 18-2798 Page 5
this same sentence even if Gallardo-Ramirez met the requirements for safety-valve
relief.
II
On appeal Gallardo-Ramirez argues that the district court should have granted
him safety-valve relief. He contends that the court erred by finding that he had not
stopped selling drugs after March 2016. He further asserts that he did not have an
opportunity to discuss the December 9, 2016 drug transaction because the government
prematurely ended the proffer. Finally, Gallardo-Ramirez argues that the court
improperly credited the government’s assertion that he withheld information about
other suppliers and customers.
None of these arguments can succeed, however, because Gallardo-Ramirez has
not carried his burden to demonstrate that the district court clearly erred—the strict
standard under which we must review the district court’s factual findings and its
ultimate conclusion about safety-valve eligibility. See United States v. Collins, 924 F.3d
436, 441 (7th Cir. 2019). The district court was entitled to credit the government’s
explanation that it ended the proffer early because Gallardo-Ramirez was not
forthcoming. We cannot accept Gallardo-Ramirez’s invitation to second-guess the
district court’s findings about the meeting. See United States v. Alvarado, 326 F.3d 857,
862 (7th Cir. 2003).
Likewise, nothing in the record supports Gallardo-Ramirez’s assertion that the
district court improperly penalized him for not providing information about
individuals and suppliers outside of the conspiracy. To the contrary, the district court
credited the government’s statement that there were customers and suppliers
“involved” in the conspiracy “that he did not identify.” Insofar as Gallardo-Ramirez is
suggesting that he was not obligated to provide information about the December 9, 2016
drug deal (because it was a “different course of conduct or scheme”), the government
provided evidence that it was related: Gallardo-Ramirez’s house and car were used in
the transaction. See U.S.S.G. § 1B1.3(a)(1)(B). We will not second-guess the district
court’s decision to credit the government’s account over that of Gallardo-Ramirez, nor
will we reweigh the evidence that the district court relied on in making its finding. See
Alvarado, 326 F.3d at 862; United States v. Lupton, 620 F.3d 790, 801 (7th Cir. 2010).
In any event, even if the district court’s denial of safety-valve relief had been
erroneous, such error would have been harmless. Harmless error applies when it is
No. 18-2798 Page 6
clear that the district court would have imposed the same sentence despite the error
identified on appeal. See United States v. Salgado, 917 F.3d 966, 969–70 (7th Cir. 2019).
Here, there can be no doubt that the district court would have imposed the same
sentence even if it had concluded that Gallardo-Ramirez was entitled to safety-valve
relief. The court could not have been clearer on this point:
The sentence that I am going to impose would be the same whether or not the
safety valve applied and whether or not the guidelines for obstruction of justice
and acceptance of responsibility applied, because, based on the conduct here, the
drug quantity, the relationship to his brother, and the lack of complete honesty at
the change of plea hearing, all of that indicates to me that the appropriate
sentence is, in fact, a sentence of 120 months on Count One of the third
superseding indictment.
The court’s statement, combined with the fact that Gallardo-Ramirez’s sentence
falls well below the bottom of the advisory guidelines range, convinces us that any error
with the district court’s safety-valve finding was harmless. We therefore decline
Gallardo-Ramirez’s invitation to remand for resentencing.
For these reasons, we AFFIRM.