United States v. Jaime Orozco-Sanchez , 814 F.3d 844 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 15-1252
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAIME OROZCO-SANCHEZ, also known
as Oscar Orozco,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 CR 128 — Virginia M. Kendall, Judge.
ARGUED DECEMBER 8, 2015 — DECIDED FEBRUARY 26, 2016
Before WOOD, Chief Judge, and BAUER and WILLIAMS, Circuit
Judges.
BAUER, Circuit Judge. Defendant-appellant, Jaime Orozco-
Sanchez, pleaded guilty to one count of possessing with intent
to distribute 500 or more grams of a substance containing
cocaine, in violation of 21 U.S.C. § 841(a)(1). The district court
sentenced him to seventy-five months of imprisonment, as well
as four years of supervised release. The court ordered that
2 No. 15-1252
Orozco-Sanchez serve the seventy-five-month prison sentence
consecutive to a separate forty-one-month prison sentence
from an earlier case for illegal reentry into the United States in
violation of 8 U.S.C. § 1326(a) and 6 U.S.C. § 202(4).
Orozco-Sanchez now appeals his sentence, arguing that the
district court erred in three ways. First, it did not properly
consider the 18 U.S.C. § 3553(a) mitigation factors as 18 U.S.C.
§ 3584(b) requires. Second, it used the 2013 United States
Sentencing Commission Guidelines Manual (“Sentencing
Guidelines”) instead of the 2014 Sentencing Guidelines, which
led the district court to refuse to classify Orozco-Sanchez’s
earlier offense as “relevant conduct” to the present offense.
Orozco-Sanchez argues that these first two errors caused the
district court to impermissibly impose a consecutive rather
than a concurrent sentence. Finally, Orozco-Sanchez argues
that the district court erred by imposing certain written
conditions of supervised release that were not orally pro-
nounced from the bench. We disagree with Orozco-Sanchez’s
first two arguments, but agree with the third. Accordingly, we
vacate the sentence and remand for a full resentencing.
I. BACKGROUND
On August 6, 2011, Orozco-Sanchez spoke with Ismael
Garibay about purchasing $53,000 worth of cocaine. Garibay
agreed and sold Orozco-Sanchez two kilograms of cocaine for
$52,000. Orozco-Sanchez bought three more kilograms of
cocaine from Garibay over the next six weeks, and then sold
the purchased cocaine to others.
On February 27, 2013, a grand jury indicted Orozco-
Sanchez and Garibay on six charges in connection with the
No. 15-1252 3
purchase and sale of the cocaine in August and September
2011. Orozco-Sanchez was specifically indicted on three counts
of possessing with intent to distribute 500 or more grams of a
substance containing cocaine. He signed a written plea agree-
ment to plead guilty to one of the three counts, but retained his
right to appeal his sentence. The court accepted his guilty plea
on July 10, 2014, and set the sentencing for January 2015.
Later that year, on November 4, 2014, Orozco-Sanchez
pleaded guilty to illegal reentry into the United States after
deportation; he had been deported from the United States on
July 18, 2003, but returned without the consent of the Depart-
ment of Homeland Security. He was indicted for illegal reentry
on November 29, 2011; the district court sentenced him to
forty-one months in prison.
On January 22, 2015, Orozco-Sanchez was sentenced for his
drug offense. Orozco-Sanchez argued that the sentence for the
drug offense should run concurrently, and not consecutively,
to his illegal reentry sentence. The district court rejected this
argument, and sentenced Orozco-Sanchez to seventy-five
months in prison consecutive to his forty-one months for illegal
reentry. The court also sentenced Orozco-Sanchez to four years
of supervised release, pronouncing various conditions of the
supervised release from the bench. The accompanying written
order included conditions that the district court had not orally
pronounced. These included thirteen “standard conditions” as
well as a condition precluding Orozco-Sanchez from possess-
ing a “destructive device” or “any other dangerous weapon.”
Orozco-Sanchez appealed his sentence.
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II. DISCUSSION
Orozco-Sanchez raises two major arguments for remand.
First, he argues that the district court committed reversible
error by not orally pronouncing certain conditions of super-
vised release at sentencing, yet imposing these conditions in its
written order. Second, he argues that the district court erred in
imposing a consecutive rather than a concurrent sentence. We
agree that the failure to orally pronounce the particular
conditions of supervised release constitutes error, but disagree
with him otherwise. Therefore, we remand his case.
A. Remand For Resentencing Is Necessary
Here, remand for full resentencing is appropriate because
the district court failed to orally pronounce certain conditions
of supervised release. A sentencing court must orally pro-
nounce its sentence. See 18 U.S.C. § 3553(c) (“The court, at the
time of sentencing, shall state in open court the reason for its
imposition of the particular sentence”); United States v. Sanford,
806 F.3d 954, 960 (7th Cir. 2015) (“only punishments stated
orally, in open court, at sentencing are valid”). Because
supervised release is part of the sentence, the court must also
orally pronounce both its overall imposition and its conditions.
See 18 U.S.C. § 3583(a) (“The court, in imposing a sentence to
a term of imprisonment … may include as part of the sentence
that the defendant be placed on a term of supervised release”
(emphasis added)); United States v. Thompson, 777 F.3d 368, 373
(7th Cir. 2015) (18 U.S.C. § 3583 “dispel[s] … [a]ny doubt that
conditions of supervised release are a part of the sentence”).
Further, where the oral pronouncement of the court
conflicts with the court’s later written order, the oral pro-
No. 15-1252 5
nouncement controls. E.g., United States v. Garcia, 804 F.3d 904,
908 (7th Cir. 2015) (citation omitted). The written order may
clarify the oral judgment if the oral judgment is ambiguous;
however, where the oral judgment is unambiguous, the
conflicting written order is a “nullity.” United States v. Johnson,
765 F.3d 702, 711 (7th Cir. 2014) (quoting United States v.
Alburay, 415 F.3d 782, 788 (7th Cir. 2005)). We review whether
an oral judgment is inconsistent with the written judgment
de novo. Id. at 710 (citation omitted).
Here, the district court’s oral pronouncement was not
ambiguous. The district court did not orally pronounce
anything regarding the thirteen standard conditions or the
condition forbidding Orozco-Sanchez from possessing a
“destructive device” or “any other dangerous weapon.” These
later added written conditions are therefore a nullity, and we
vacate them. See id. at 711 (citing Alburay, 415 F.3d at 788)
(holding that “any new conditions imposed in the later written
judgment are inconsistent with the court’s oral order and must
be vacated”).
We do not merely delete these conditions, but instead
remand the case for resentencing. The sentencing court has
“wide discretion in determining the conditions of supervised
release,” United States v. Adkins, 743 F.3d 176, 193 (7th Cir.
2014) (quotation marks and citations omitted), which it
“retains … at any time after [the] sentencing hearing.” Johnson,
765 F.3d at 711 (citing Adkins, 743 F.3d at 196). On appellate
review, we may clarify an ambiguity between the oral and
written judgment without remanding the case, such as when
a condition is redundant or pronouncement vague. See United
6 No. 15-1252
States v. Chatman, 805 F.3d 840, 847 (7th Cir. 2015) (removing
redundant second mental evaluation and not requiring remand
where district court imposed one evaluation in oral pronounce-
ment and imposed two in written order); United States v.
Bonanno, 146 F.3d 502, 512 (7th Cir. 1998) (holding that written
order clarified vague oral pronouncement and did not require
remand on particular notice requirement). But where no
ambiguity exists—as is the case here—we remand the case for
resentencing, knowing that “[a]ny issues with the conditions
[of supervised release] can … be easily corrected upon
remand.” Johnson, 765 F.3d at 711.
B. Concurrent Versus Consecutive Sentence
Orozco-Sanchez also argues that the district court erred in
holding that his sentence should be served consecutively to his
illegal reentry sentence. First, he argues that 18 U.S.C. § 3584
requires a separate thorough discussion of the § 3553(a) factors.
Second, he argues that the illegal reentry conviction constitutes
“relevant conduct” under § 1B1.3 of the Sentencing Guidelines
that mandates a concurrent sentence. We disagree with both
arguments.
1. Discussion of § 3553(a) Factors and Waiver of
Mitigation
Orozco-Sanchez first argues that the district court failed to
adequately address the § 3553(a) sentencing factors as well as
any arguments in mitigation when determining whether
Orozco-Sanchez’s sentence should run concurrently or
consecutively to the illegal reentry sentence. He argues that
this omission violates the requirements of 18 U.S.C. § 3584.
The government argues that Orozco-Sanchez waived this claim
No. 15-1252 7
under United States v. Garcia-Segura, 717 F.3d 566, 569 (7th Cir.
2013), “by telling the judge that the judge’s ruling does not
need elaboration.” We address both arguments.
First, Orozco-Sanchez argues that § 3584 mandates that the
district court engage in a second explanation of the § 3553(a)
factors in relation to whether a present sentence should run
consecutively or concurrently to an already ongoing sentence.
We disagree; a sentencing court must only address the
§ 3553(a) factors in detail once during sentencing.
Generally, a district court must explain its sentence using
the § 3553(a) factors, but this explanation “need not be
exhaustive.” United States v. Warner, 792 F.3d 847, 855 (7th Cir.
2015). See also, e.g., United States v. Nania, 724 F.3d 824, 838 (7th
Cir. 2013) (sentencing courts “do not need to make formal
findings regarding every” § 3553(a) factor (citations omitted)).
Instead, the sentencing court must provide a record that
“assures” the appellate court that it “thoughtfully considered
the statutory provisions.” Nania, 724 F.3d at 838. Doing so
“allow[s] for meaningful appellate review and … promote[s]
the perception of fair sentencing.” Gall v. United States, 552 U.S.
38, 50 (2007) (citing Rita v. United States, 551 U.S. 338, 357–58
(2007)).
Section 3584(b) states that “in determining whether the
terms imposed are to be ordered to run concurrently or
consecutively,” the sentencing court “shall consider … the
factors set forth in section 3553(a).” But this does not require a
second full explanation of the § 3553(a) factors. See United
States v. Eads, 729 F.3d 769, 781–82 (7th Cir. 2013) (affirming
consecutive sentence of defendant convicted of both distribut-
8 No. 15-1252
ing and possessing child pornography and witness tampering
where district court gave more thorough explanation of
§ 3553(a) factors in context of child pornography conviction
than in context of tampering conviction). The district court
must still explain why it has chosen a consecutive or concur-
rent sentence—addressing even a single § 3553(a) factor—but
it need not engage in a repetitive rigorous discussion of the
§ 3553(a) factors.
Second, to further eliminate any confusion regarding the
court’s address of the § 3553(a) sentencing factors on remand,
the district court should incorporate the use of waiver estab-
lished under Garcia-Segura. Generally, “[a] sentencing court
must address a defendant’s principal arguments in mitigation
unless they are too weak to merit discussion.” Garcia-Segura,
717 F.3d at 568 (citing United States v. Marin-Castano, 688 F.3d
899, 902 (7th Cir. 2012) and United States v. Cunningham, 429
F.3d 673, 679 (7th Cir. 2005) (other citations omitted)). If a court
fails to do so, a defendant may appeal his sentence for failure
to adequately explain the sentence. See Cunningham, 429 F.3d
at 679 (“A judge who fails to mention a ground of recognized
legal merit … is likely to have committed error or oversight”);
United States v. Donelli, 747 F.3d 936, 939 (7th Cir. 2014) (noting
that “Cunningham imposes a procedural requirement” that
allows a “reviewing court … to satisfy itself that the district
court actually exercised its discretion” (citations omitted)).
However, our court has enforced waiver of a procedural
Cunningham appeal on the issue of mitigation. See Segura-
Garcia, 717 F.3d at 568–69. The procedure to establish waiver
is clear. First, the sentencing court should “inquire of defense
No. 15-1252 9
counsel whether [counsel is] satisfied that the court has
addressed their main arguments in mitigation.” Id. at 569.
Second, if defense counsel answers that the court has ad-
dressed all arguments in mitigation, or states that he or she
has nothing further, or merely fails to voice an objection, an
appeal or any “later challenge” of any issue pertaining to
mitigation is waived. Id.; see also Donelli, 747 F.3d at 941
(affirming waiver of any Cunningham appeal regarding
mitigation under Garcia-Segura). We have noted that the
procedure established in Garcia-Segura is “preferable to
correction after appellate review” and its attending delay.
Donelli, 747 F.3d at 941. Rather, “[t]he Garcia-Segura approach
makes it possible to correct a genuine Cunningham procedural
error on the spot, at the end of a sentencing hearing in the
district court.” Id. We reiterate the usefulness of this approach
for the sake of fairness to the defendant as well as judicial
efficiency.
Here, the district court repeatedly asked defense counsel if
it had addressed all of Orozco-Sanchez’s mitigation arguments.
Defense counsel responded that the court had done so. On
remand, a similar colloquy would constitute a Garcia-Segura
waiver.
2. Previous Offense Not “Relevant Conduct” To
Present Offense
Orozco-Sanchez also argues that the Sentencing Guidelines
mandate that his seventy-five-month drug possession sentence
run concurrently to his forty-one-month illegal reentry
sentence. He argues that his illegal reentry was “relevant
conduct” under § 1B1.3 of the Sentencing Guidelines. This
10 No. 15-1252
would have brought Orozco-Sanchez under the umbrella of
§ 5G1.3(b), which mandates a concurrent sentence. See, e.g.,
United States v. Moore, 784 F.3d 398, 403 (7th Cir. 2015); United
States v. Conley, 777 F.3d 910, 913 (7th Cir. 2015). He further
argues that the district court erred in using the 2013 Sentencing
Guidelines as opposed to the 2014 Sentencing Guidelines.
Given the changes to § 5G1.3 in the 2014 Sentencing Guide-
lines, Orozco-Sanchez argues that the court analyzed the
relationship between his two offenses under an unnecessarily
stringent test. Regardless of whether the district court used the
2013 or 2014 Sentencing Guidelines, Orozco-Sanchez’s illegal
reentry offense is not relevant conduct to the present drug
offense and a concurrent sentence is not mandated.
We first note that even if Orozco-Sanchez’s illegal reentry
offense were relevant conduct to the present drug offense, the
district court would not be mandated to impose a concurrent
sentence. The Sentencing Guidelines are recommendations
with which “courts are … free to disagree.” Moore, 784 F.3d at
404; see also Nania, 724 F.3d at 830 (“given the advisory nature
of the Sentencing Guidelines, a district court has no obligation
to impose a concurrent sentence, even if 5G1.3(b) applies”
(citations omitted)); United States v. Bangsengthong, 550 F.3d
681, 682 (7th Cir. 2008) (noting that United States v. Booker, 543
U.S. 220 (2005), “made all Guidelines advisory; a judge must
understand what sentence the Guidelines recommend but need
not impose it” (other citations omitted)).
Regardless, Orozco-Sanchez’s illegal reentry offense is not
relevant conduct to his drug possession with intent to distrib-
ute offense. Orozco-Sanchez correctly states that the 2014
No. 15-1252 11
Sentencing Guidelines simplified the requirements for a
mandated concurrent sentence. Prior versions of the Senten-
cing Guidelines had a two-part test for supporting a concurrent
sentence under § 5G1.3(b), in which a defendant had to show:
(1) the previous offense qualifies as relevant conduct to the
present offense under § 1B1.3; and (2) the previous offense was
the basis for the increase in offense level for the present
offense. See United States v. Rachuy, 743 F.3d 205, 212 (7th Cir.
2014). The 2014 Sentencing Guidelines expunged the second
element of this test. See Conley, 777 F.3d at 914 (under current
Sentencing Guidelines, “a defendant need only show that the
prior undischarged term of imprisonment resulted from
another offense that qualifies as ‘relevant conduct’ to the
instant offense”). Thus, Orozco-Sanchez only needs to show
that his illegal reentry offense was relevant conduct to his drug
offense. See Nania, 724 F.3d at 833 (defendant carries burden of
establishing that previous offense constitutes relevant conduct
to present offense).
Orozco-Sanchez cannot do this because the connection
between the two offenses is too attenuated to constitute
relevant conduct under § 1B1.3. We define relevant conduct
broadly, but generally hold that there must be some factual
overlap between the two offenses. See Nania, 724 F.3d at 830
(“the conduct behind the two [sentences]” must “sufficiently
overlap[]”). Sufficient factual overlap exists where the past and
present offenses involve the same victims, stem from the same
underlying conduct, or are in fact similar offenses. See, e.g,
Nania, 724 F.3d at 833 (state offense was relevant conduct to
present federal offense because both offenses involved same
conduct and same victims); Moore, 784 F.3d at 402–03 (state
12 No. 15-1252
attempted murder and aggravated battery offenses were
relevant conduct to federal interference with commerce by
robbery offense because all offenses stemmed from single
robbery of delivery truck); Rachuy, 743 F.3d at 211–12 (both
previous state offense and present federal offense were fraud
offenses); United States v. Cruz, 595 F.3d 744, 745 (7th Cir. 2010)
(both previous state offense and present federal offense were
related drug offenses). Here, no such overlap exists: there are
no similar victims; the offenses involve two distinct acts; and
the offenses themselves are quite dissimilar. See, e.g., United
States v. Hernandez, 620 F.3d 822, 822–23 (7th Cir. 2010) (previ-
ous state charge of unlawful possession of firearm not similar
enough to present federal charge of distributing cocaine base
to constitute relevant conduct).
Orozco-Sanchez essentially argues that if a previous offense
is a prerequisite to committing the present offense, then the
previous offense is relevant conduct. He argues that it was
impossible for him to possess drugs with intent to distribute
without first being in the country. So, he says, the illegal
reentry offense was relevant conduct to the drug offense.
We disagree. That a previous offense is a prerequisite to the
present offense is neither necessary nor sufficient to constitute
relevant conduct. For example, in Conley, the defendant,
incarcerated for bank robbery, escaped from federal prison. 777
F.3d at 912. At his sentencing, he argued that the bank robbery
was relevant conduct to the prison escape because he could not
have escaped from prison if he had not first been in prison. Id.
at 913. We found that the first offense of bank robbery, while
No. 15-1252 13
a prerequisite to the second offense of prison escape, was not
relevant conduct to the prison escape offense. Id. at 913–14.
Here, Orozco-Sanchez’s illegal reentry offense, even if a
prerequisite to his present offense, is not § 1B1.3 relevant
conduct that supports imposing a concurrent sentence under
§ 5G1.3(b). The connection is far too remote to constitute
sufficient factual overlap. On remand, the district court may
certainly determine that Orozco-Sanchez’s drug possession
sentence should run concurrently to the illegal reentry sen-
tence, but it is not obligated to do so.
III. CONCLUSION
For the foregoing reasons, we VACATE Orozco-Sanchez’s
sentence and REMAND for a full resentencing.