United States v. Arceo, Edgar ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-3296
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDGAR ARCEO,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 CR 596—David H. Coar, Judge.
____________
ARGUED APRIL 14, 2008—DECIDED JULY 28, 2008
____________
Before FLAUM, EVANS, and TINDER, Circuit Judges.
TINDER, Circuit Judge. Edgar Arceo and a co-defendant
were charged with a conspiracy to possess with intent
to distribute and to distribute a controlled substance in
violation of 21 U.S.C. § 846. More than six years later
Arceo was arrested. He moved to dismiss the indictment
based on an alleged violation of his constitutional right
to a speedy trial. His motion was denied. Arceo then
pled guilty to the conspiracy charge, conditioning his
plea on the right to appeal the denial of his motion to
dismiss. The district court sentenced Arceo to 108 months’
imprisonment followed by a term of supervised release.
2 No. 07-3296
Arceo appeals. While he raises three issues, his main
argument is that his right to a speedy trial was violated.
He also challenges his sentence, arguing that the obstruc-
tion of justice adjustment under U.S.S.G. § 3C1.1 was not
appropriate and that the district court did not ade-
quately consider his cooperation with the government.
After a brief presentation of the facts, we turn to Arceo’s
arguments.
I. Background
On August 11, 1999, Arceo was arrested in a parking lot
in Aurora, Illinois, after delivering approximately 5 kilo-
grams of cocaine to a confidential informant who was
working with the Drug Enforcement Agency (“DEA”).
Immediately after his arrest, Arceo was interviewed by
agents. He waived his Miranda rights and agreed to
cooperate with law enforcement. He identified his
source of supply of cocaine, Jose Salazar-Felix, and
agreed to show the agents where he got the cocaine. The
agents accompanied Arceo to a residence in Palatine,
resulting in Salazar-Felix’s arrest and eventual prosecu-
tion. Arceo subsequently was transported to the Palatine,
Illinois, Police Department for processing.
Both at the time of his arrest in the parking lot and
again while at the Palatine Police Department, Arceo was
advised by the DEA Task Force Officer Lou Dominguez
and other agents that they did not know when he
would be charged, but that he would, in fact, be charged
at a later time after his cooperation ended.1 Arceo was
1
Arceo argues that he was not told that he definitely would be
indicted, but only that it was a possibility. However, he did
(continued...)
No. 07-3296 3
released from custody in order to continue his coopera-
tion. He identified his source of marijuana, Jesus
Rodriguez-Medina, and arrangements were made for a
meeting. Law enforcement and Arceo agreed to contact
each other the next day.
For two days Arceo cooperated with law enforcement.
He arranged for a marijuana transaction on August 12
with Rodriguez-Medina. Arceo did meet with Rodriguez-
Medina, who was arrested. Law enforcement and Arceo
agreed to meet the next day. On August 13, however,
when Officer Dominguez called Arceo to arrange to meet,
he was unable to reach him. Other agents likewise tried
to contact Arceo but did not succeed. As a result the
agents went looking for Arceo at his residence. They
were unable to find him and determined he had moved
out. After the usual law-enforcement checks in the North-
ern District of Illinois, Arceo still did not turn up.
On November 4, 1999, Arceo and Rodriguez-Medina
were charged in a one-count indictment with a cocaine
and marijuana conspiracy. A minute order was entered
that day, stating: “The government will seek to have the
defendant detained without bond . . . as to Edgar Arceo,
1
(...continued)
not present any testimony, not even his own, or any other
evidence to support his assertion. Arceo also claims that
Officer Dominguez testified at the hearing on the motion to
dismiss that Arceo was told that he “may” be charged. The
transcript of that hearing contradicts this claim. For example,
on direct examination Officer Dominguez stated that “we
told him [Arceo] that we didn’t know when we would be
charging him, but that we would charge him at a later time
after his cooperation was done.”
4 No. 07-3296
granted. Enter order.” An arraignment notice was entered
the next day. The docket does not show that an arrest
warrant was issued for Arceo. Between November 1999
and July 2000, there were a number of court pro-
ceedings involving Rodriguez-Medina but no docket
entries reflect any activity as to Arceo. On July 27, 2000,
Arceo’s case was reassigned to the fugitive calendar.
In early 2001, Officer Dominguez discovered that no
arrest warrant had been issued for Arceo. So on April 4,
2001, he contacted the Assistant United States Attorney
(“AUSA”) assigned to the case in an effort to obtain an
arrest warrant. No warrant was issued, so Officer
Dominguez contacted the AUSA once again in 2001 and
still later in 2002, before he stopped working as a DEA
task officer. The agent who took over this case made two
attempts in 2003 to have an arrest warrant issued for
Arceo. None was issued until December 15, 2005, how-
ever. On December 20, that warrant, along with a
second warrant issued December 19, were quashed for
reasons not indicated in the record, and a third bench
warrant was issued.
On April 4, 2006, Arceo was arrested in the Middle
District of Pennsylvania. He was living there under the
assumed identity of Rowdy Sepulvida, which he admit-
ted he purchased from a friend.
A detention hearing was held on April 5, 2006, in Penn-
sylvania, at which Arceo’s wife of twelve years, Maria
Arceo, testified. She stated that in August 1999 she and
her husband left Chicago for Mexico “because of the
problem” in Chicago (without any details about the
nature of the problem) and that they lived in Mexico for
about three years. According to Maria, it was her hus-
band’s idea to go to Mexico. She testified that she be-
No. 07-3296 5
lieved her husband knew he was wanted in Chicago.
Maria said that they returned to the United States in
2002 and lived in Spring Grove, Pennsylvania, near her
family. She also said it was about that time that Arceo
began using the Rowdy Sepulvida name. She explained
that Arceo could not use his own name because of the
problem he had in Chicago.2
Prior to trial Arceo moved to dismiss the indictment. The
district court held a hearing on the motion. The court
considered the transcript of Maria’s testimony at the
detention hearing and the testimony of former Task Force
Officer Dominguez about Arceo’s arrest, cooperation,
and flight, and then denied the motion to dismiss. The
court found that Arceo was aware he had been arrested
and that criminal charges would be filed, yet chose to
remove himself from the United States, later returning to
another jurisdiction under an assumed name until his
arrest. The court indicated that the government may not
have done “as much as it could have” but concluded
that Arceo’s attempt to avoid arrest and prosecution
outweighed any negligence by the government.
On April 2, 2007, Arceo pled guilty pursuant to a plea
agreement to a conspiracy to possess with intent to distrib-
ute and to distribute a controlled substance, in violation
of 21 U.S.C. § 846. His plea was conditioned on his right
to appeal the denial of his motion to dismiss. The dis-
2
On redirect, however, Maria claimed that she had no idea
what the problem in Chicago was and that Arceo started
using Sepulvida’s name just so he could work. We have no
basis for concluding that the district court erred in disbelieving
this testimony, which was more favorable to Arceo than
Maria’s initial testimony.
6 No. 07-3296
trict court accepted his conditional plea and entered a
judgment against him.
At sentencing the district court heard arguments re-
lating to adjustments for obstruction of justice under
U.S.S.G. § 3C1.1 and acceptance of responsibility, and con-
sidered the 18 U.S.C. § 3553(a) sentencing factors, specifi-
cally including Arceo’s family history and circum-
stances, his lack of criminal history since 1999, and his
cooperation with the government immediately fol-
lowing his arrest. The court sentenced him to 108 months’
imprisonment, at the bottom of the guidelines range. Arceo
appeals.
II. Sixth Amendment Right to A Speedy Trial
Arceo’s first and principal argument is that the district
court erred in denying his motion to dismiss because
he was deprived of his Sixth Amendment right to a
speedy trial. The government responds that there was
no error because Arceo’s own conduct in evading law
enforcement outweighs any government conduct con-
tributing to the six-year and eight-month delay fol-
lowing his initial arrest. We review a speedy trial claim
de novo and review the district court’s factual findings
for clear error. See United States v. King, 338 F.3d 794, 797
(7th Cir. 2003) (stating explicitly the standard of review
for a Speedy Trial Act claim and applying the same
standard to a Sixth Amendment speedy trial claim); see
also United States v. Sutcliffe, 505 F.3d 944, 956 (9th Cir.
2007) (stating explicitly the standard of review for a
constitutional speedy trial claim); United States v. Brown,
498 F.3d 523, 530 (6th Cir.) (same), cert. denied, 128 S. Ct. 674(2007).
No. 07-3296 7
The Sixth Amendment right to a speedy trial is triggered
by an arrest, indictment, or some other official accusation.
Doggett v. United States, 505 U.S. 647, 655 (1992); United
States v. White, 443 F.3d 582, 589 (7th Cir. 2006). In deter-
mining whether a defendant has been deprived of this
speedy trial right, we consider and weigh the conduct of
the government and the defendant. Barker v. Wingo, 407
U.S. 514, 530 (1972). In doing so we assess “whether
delay before trial was uncommonly long, whether the
government or the criminal defendant is more to blame
for that delay, whether, in due course, the defendant
asserted his right to a speedy trial, and whether he suf-
fered prejudice as the delay’s result.” Doggett, 505 U.S.
at 651; see also White, 443 F.3d at 589.
The length of the delay acts as a triggering mechanism.
Unless the delay is presumptively prejudicial, we need
not consider the other factors. Barker, 407 U.S. at 530;
White, 443 F.3d at 589. A delay approaching one year is
presumptively prejudicial. United States v. Oriedo, 498
F.3d 593, 597 (7th Cir. 2007); White, 443 F.3d at 589-90.
Here, more than six and one-half years passed from the
time of Arceo’s arrest in August 1999 to his plea in
April 2007. This extraordinary delay stretches well be-
yond the minimum needed to trigger a further speedy
trial analysis. See Doggett, 505 U.S. at 652. This lengthy
delay weighs in favor of Arceo.
The second factor is the reason for the delay, and it is this
factor that is at the heart of Arceo’s claim. Different
weights should be given to different reasons for delay:
“A deliberate attempt to delay the trial in order to
hamper the defense should be weighted heavily against
the government. A more neutral reason such as
negligence . . . should be weighted less heavily . . . .” Barker,
8 No. 07-3296
407 U.S. at 531. Arceo contends the delay is attributable
to the government’s negligence. The government argues
that the principal reason for the delay was Arceo’s in-
tentional attempt to evade law enforcement.
Here there were a few reasons for the delay. For one,
when Arceo was indicted on November 4, 1999, a minute
entry reflects that an order for Arceo’s arrest and deten-
tion would be issued but, for some inexplicable rea-
son—the government suggests a clerical error in the
clerk’s office—none was entered. From the best we can
glean from the record, for several months no one noticed
that an arrest warrant had not been issued. Then on
July 27, 2000, this case was reassigned to the fugitive
calendar, which implies that someone in the clerk’s
office and/or court staff believed there was an out-
standing warrant for Arceo’s arrest. Nothing in the
record before us suggests that the delay caused by this
error is attributable to the government. This error seems
to have contributed to over one year’s worth of the delay
as it was not until early 2001 that the fact that no arrest
warrant had been issued was first discovered.
It was in early 2001 that Officer Dominguez discovered
that no arrest warrant had been issued, so he contacted
the AUSA assigned to the case in an effort to obtain an
arrest warrant. In total in the next few years, the DEA
agents made five attempts to have an arrest warrant
issued, without success until December 15, 2005. That
warrant was later quashed and ultimately a warrant
issued on December 19, 2005. The government’s apparent
inaction in response to repeated notification that no
warrant had been issued seems negligent. This negligence
contributed to the delay from April 2001 through Decem-
ber 15, 2005, approximately four years and eight months.
No. 07-3296 9
However, Arceo has offered nothing to suggest that the
government acted intentionally in causing this delay.
Thus, while we consider the reason for this part of the
total delay, we do not weight it heavily against the gov-
ernment. See Barker, 407 U.S. at 531.
But most of the blame for the delay lies with Arceo
himself. Arceo intentionally fled to Mexico for three
years, and returned to the United States, but not to the
Chicago area. He returned instead to another jurisdic-
tion hundreds of miles away in Pennsylvania, where he
lived under an assumed name. His actions support the
conclusion that he was hiding from authorities in a cal-
culated effort to avoid arrest and prosecution. Arceo
likens his case to Doggett, in which the Supreme Court
held that an eight and one-half year delay between the
defendant’s indictment and arrest violated his speedy
trial rights. Doggett was indicted with others for a drug
conspiracy. Doggett, 505 U.S. at 648. When law enforce-
ment attempted to arrest him, they learned that he had
left the country a few days before. The DEA attempted
to catch Doggett on his return to the United States, but
these efforts ceased with time. Approximately two and
one-half years after his indictment, Doggett returned to the
United States, where he lived openly under his own name.
He later was found pursuant to a mass credit check on
several thousand persons subject to outstanding arrest
warrants. Id. at 649-50. The Court deferred to the lower
court’s finding that the delay was attributable to the
government’s negligence. Id. at 652-53.
Two facts easily distinguish this case from Doggett: First,
Doggett “lived openly under his own name” upon his
return to the United States. Id. at 649. Thus, the Court
observed that for six years, the government investigators
10 No. 07-3296
made no serious effort to find Doggett, but had they
done so “they could have found him within minutes.” Id.
at 653. Here, in contrast, Arceo was living under an
assumed name: he was in hiding. It cannot be said that
law enforcement could have quickly and easily found
him within minutes if only they had made an effort.
While Arceo was arrested relatively quickly—three and
one-half months—after the December 2005 arrest warrant
was issued, this was due in part, no doubt, to good in-
vestigative work and perhaps some good luck. Another
significant difference is that Doggett had no knowledge
of the charges against him until his arrest. Id. at 653-54.
While Arceo may have been unaware of the indictment
against him until his April 2006 arrest, the district court
found that when Arceo fled in August 1999, he was
aware that criminal charges were forthcoming. This
finding is well-supported by the record. Both at the time
of his arrest in the parking lot and again while at the
police department, Arceo was advised by Officer
Dominguez and other agents that he would be charged,
though they did not know when the charges would be filed.
Thus, the district court’s finding in this regard is not
erroneous.
Arceo makes much of testimony by Officer Dominguez
about conversations with Arceo “as to when he would be
charged with a crime” and whether the officer told
Arceo on August 12 that he was going to be charged, to
which Officer Dominguez responded “no” and “I don’t
recall.” This testimony does not contradict the officer’s
testimony that he and others had discussed with Arceo
several times on August 11 that he would be charged
following his cooperation. Arceo argues that he was
using an assumed name simply for employment pur-
No. 07-3296 11
poses, but the district court could reasonably reject this
explanation. While the government may have acted
negligently, Arceo acted intentionally and he therefore
bears more blame for the delay. Thus, the reason for
the delay weighs in favor of the government.
The third factor is somewhat neutral. Arceo was not
informed that the indictment had been returned against
him until his arrest. See id. at 653-54 (stating that if defen-
dant knew of his indictment for years before he was
arrested, the third factor “would be weighed heavily
against him,” but where he was not aware of the indict-
ment prior to his arrest, he “is not to be taxed for
invoking his speedy trial right only after his arrest”). And
Arceo did move to dismiss the indictment, asserting
his speedy trial rights. But Arceo had been arrested and
knew that he would be charged following his coopera-
tion. Upon fleeing to Mexico, he was no longer cooperat-
ing, so he was on notice that charges would soon follow.
The fact that Arceo moved to dismiss the indictment for
a speedy trial violation cuts in his favor; however, the
fact that he knew that charges were certain but fled
the jurisdiction to avoid prosecution cuts against him.
The fourth factor is prejudice to the defendant. Arceo
does not claim that he suffered any particularized preju-
dice caused by the delay. He argues that the extra-
ordinary length of the delay suffices to establish prejudice.
Proof of particular prejudice is not necessary in every
case; in some cases of excessive delay prejudice may be
presumed. Id. at 655-56; Oriedo, 498 F.3d at 600. Yet this
presumed prejudice is not sufficient to carry a speedy
trial claim “absent a strong showing on the other Barker
factors.” Oriedo, 498 F.3d at 600. Again, Arceo likens his
case to Doggett where the presumptive prejudice caused
12 No. 07-3296
by the delay was sufficient to warrant relief for a
speedy trial violation. But there, Doggett could not be
blamed for the delay; but for the government’s egregious
negligence, he would have been prosecuted six years
earlier than he was. Doggett, 505 U.S. at 657-58. Here, in
sharp contrast, Arceo is at fault. He acted intentionally
and deliberately in attempting to avoid arrest and prosecu-
tion. This conduct weighs heavily against him and out-
weighs the government’s negligence. Considering all of
the circumstances including the absence of any partic-
ularized prejudice to Arceo, we conclude that the district
court did not err in concluding that Arceo had not
shown a deprivation of his constitutional speedy trial right.
III. Obstruction of Justice
Arceo’s next challenge is to the district court’s applica-
tion of the obstruction of justice adjustment under U.S.S.G.
§ 3C1.1. We review an obstruction of justice finding
for clear error, giving deference to the district court’s
application of the guidelines to the facts. United States v.
King, 506 F.3d 532, 535 (7th Cir. 2007) (per curiam); United
States v. Porter, 145 F.3d 897, 902 (7th Cir. 1998). The
pertinent question under § 3C1.1 is “ ‘whether the defen-
dant’s conduct evidences a willful intent to obstruct
justice.’ ” Porter, 145 F.3d at 903 (quoting United States v.
Draves, 103 F.3d 1328, 1338 (7th Cir. 1997)). While the
application note to § 3C1.1 states that “avoiding or
fleeing from arrest” generally will not warrant an ob-
struction of justice enhancement, U.S.S.G. § 3C1.1, cmt.
n.5(d); see Porter, 145 F.3d at 903, our cases draw a line
between “ ‘panicked, instinctive flight,’ ” which does not
warrant an enhancement, and “ ‘calculated evasion,’ ”
which does. Porter, 145 F.3d at 903 (quoting Draves, 103
F.3d at 1337).
No. 07-3296 13
Arceo engaged in conduct that clearly supports the
obstruction of justice finding. See King, 506 F.3d at 535(concluding challenge to obstruction of justice finding
would be frivolous where defendant while on pretrial
release absconded for two months, obtained a driver’s
license using a stolen social security number, and used
that false identity to buy a car); Porter, 145 F.3d at 903-
04 (concluding obstruction of justice enhancement war-
ranted where defendant, though not yet arrested, knew
an indictment against him was imminent and none-
theless fled the jurisdiction and changed his identity).
Arceo knew he would be charged with a crime; yet he
fled the jurisdiction, living in Mexico for several years and
later returning to the United States, relocating to distant
Pennsylvania under an assumed name.
Arceo argues that it is not clear that he fled the juris-
diction because he knew he would be charged with a
crime. He claims that he only knew that he might be
charged. The record belies this claim. While Officer
Dominguez did not tell Arceo specifically when he would
be charged and did not discuss with him on August 12
whether he would be charged at all, it is undisputed
that Arceo was told several times on August 11, both
when he was arrested and while he was being processed
at the police station, that he would in fact be charged.
Nothing in the record suggests that these assertions
were ever retracted. Arceo suggests that he had reason to
believe he might not be charged because of his sub-
stantial assistance to law enforcement over two days, but
he points to nothing in the record—nothing said by
Officer Dominguez, another DEA agent, or any other law
enforcement or government agent—to make such a belief
reasonable. Arceo also suggests that he left Chicago
14 No. 07-3296
because of fear of retaliation from the individuals who
were arrested because of his cooperation. But again he
offers no evidence to substantiate this assertion. We agree
that Arceo’s conduct was a calculated effort to evade
prosecution, and we find no error in the district court’s
obstruction of justice finding.
IV. Substantial Cooperation
The third issue is whether the within-guidelines sen-
tence was reasonable given Arceo’s substantial coopera-
tion with the government. We review a sentence for
reasonableness under an abuse-of-discretion standard.
United States v. Omole, 523 F.3d 691, 696 (7th Cir. 2008)
(citing Gall v. United States, --- U.S. ----, 128 S. Ct. 586, 597
(2007)). A properly calculated within-guidelines sen-
tence is presumed reasonable. Id. (citing Rita v. United
States, --- U.S. ----, 127 S. Ct. 2456, 2462-63 (2007)). But this
presumption may be rebutted by a showing that the
sentence is unreasonable when considered against the
§ 3553(a) factors. United States v. Harvey, 516 F.3d 553,
556 (7th Cir. 2008).
Arceo does not argue that the district court erred in
calculating the applicable guidelines range. Nor does he
dispute that he had an opportunity to identify the § 3553(a)
factors that might warrant a non-guidelines sentence. The
record shows that he did. The record also reflects the
district court’s consideration of the § 3553(a) factors.
Arceo’s objection is more pointed. He contends that his
sentence was unreasonable because it did not adequately
account for his substantial cooperation with law enforce-
ment. In his view, he should have received a below-
guidelines sentence.
No. 07-3296 15
The district court did account for Arceo’s cooperation
though. The court sentenced him at the low end of the
guidelines range (108-135 months) instead of the mid-
range—where the judge said he typically sentences de-
fendants—based in large measure on Arceo’s cooperation.
Thus, Arceo received 108 months instead of 122. We
think this effective 14-month reduction adequately ac-
counts for Arceo’s cooperation. While the court could
have relied on Arceo’s cooperation as a basis for going
below the guidelines range, it was not required to do so.
Neither fairness nor the requirement that a sentence be
no greater than necessary compels the conclusion that a
sentence at the very bottom of the guidelines range was
unreasonable. The 108-month sentence adequately ac-
counts for Arceo’s cooperation along with the other facts
and circumstances of the case. This case exemplifies
what sentencing discretion is all about. See United States
v. Willis, 523 F.3d 762, 770 (7th Cir. 2008) (“[T]he district
court has substantial discretion in choosing a rea-
sonable sentence.”).3
3
Arceo also suggests that his cooperation would justify a
U.S.S.G. § 5K1.1 motion and the government’s explanation for
not making the motion—“office policy”—was a “whim.” “[W]e
may review the government’s refusal to move for a departure
based on substantial assistance only for unconstitutional
motive.” United States v. Bosque, 312 F.3d 313, 318 (7th Cir. 2002).
Arceo does not argue that the government’s decision not to
make a § 5K1.1 motion was based on an unconstitutional motive.
Moreover, although Arceo initially cooperated with law
enforcement, providing valuable information which led to the
arrest and convictions of Rodriguez-Medina and Salazar-Felix,
a short while later he fled the jurisdiction. His flight left
(continued...)
16 No. 07-3296
Arceo has not shown that his sentence at the very bot-
tom of the guidelines range was unreasonable. Accord-
ingly, we conclude that the district court did not abuse
its discretion in imposing Arceo’s sentence.
V. Conclusion
For the foregoing reasons, Arceo’s conviction and sen-
tence are AFFIRMED.
3
(...continued)
him unable to follow through with his initial cooperation by
testifying, if necessary, at Rodriguez-Medina’s and Salazar-
Felix’s trials. From the government’s perspective, Arceo’s
deliberate flight made him unqualified for a § 5K1.1 motion.
That determination does not appear to be the product of an
unconstitutional motive.
USCA-02-C-0072—7-28-08