United States v. Sisto Bernal , 765 F.3d 732 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 13-2169, 13-2189, 13-2892 & 13-3177
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OSCAR GONZALEZ, MARTIN ANAYA,
SISTO BERNAL, and DANTE L. REYES,
Defendants-Appellants.
Appeals from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:10-cr-00109-RL-APR — Rudy Lozano, Judge.
ARGUED MAY 23, 2014 — DECIDED AUGUST 29, 2014
Before BAUER and EASTERBROOK, Circuit Judges, and ST. EVE,
District Judge.*
BAUER, Circuit Judge. Our circuit is familiar with appeals
from convicted gang members of the Almighty Latin Kings
*
The Honorable Amy J. St. Eve, of the United States District Court for the
Northern District of Illinois, sitting by designation.
2 Nos. 13-2169, 13-2189, 13-2892 & 13-3177
Nation.1 This appeal is a consolidation of four cases of former
Latin Kings gang members who were indicted, prosecuted,
and sentenced in the Northern District of Indiana. The indict-
ment included twenty-three defendants: one defendant went
to trial, twenty-one pleaded guilty, and one was never appre-
hended. The group was part of a major drug trafficking ring
and linked to nineteen homicides. After the twenty-two
convictions, four defendants filed appeals.
I. BACKGROUND
A. Martin Anaya
Martin Anaya was the defendant who took his case to trial.
He was charged with one count of conspiracy to participate in
racketeering, one count of conspiracy to distribute a controlled
substance, and two counts associated with the murder of
Christina Campos, a member of the rival Latin Counts gang.
Anaya faced a sentence of death or life imprisonment. See 18
U.S.C. §§ 924(c), 924(j).
It is undisputed that Anaya and three other Latin Kings
(Brandon Clay, Jason Ortiz, and a juvenile nicknamed “DK”)
were driving in Anaya’s van in the territory of their rival, the
Latin Counts gang, after midnight on April 22, 2009. They
saw three Latin Counts gang members on foot and picked a
fight. The fight lasted from a few seconds to a couple minutes,
at most, leaving Campos dead from a gunshot wound. The
medical examiner concluded that Campos died of a gunshot
1
For an extensive description of the overarching culture and organization
of the Latin Kings gang see United States v. Garcia, 754 F.3d 460, 465–69 (7th
Cir. 2014).
Nos. 13-2169, 13-2189, 13-2892 & 13-3177 3
wound to her chest. It was evident from the angle of the
wound that the shooter was standing above her while she was
on the ground.
There were many versions of how Campos died that night.
The three Latin Kings present with Anaya did not testify at
trial but made several conflicting statements during the
investigation. The three ultimately concluded that none of the
Latin Kings were responsible for shooting Campos and
suggested that someone from the Latin Counts, Campos’ own
gang, accidently shot her. Other Latin Kings not present at the
shooting testified at trial: they stated that the Latin Kings were
not responsible for Campos’ murder. Isaac Wilhelm, one of the
Latin Counts walking with Campos, identified Anaya in court
as one of the people in the van, but Wilhelm ran before shots
were fired and could not identify the shooter.
Mary Gonzalez, a nearby resident, also testified. She said
that she was on her way out to walk her dog when she heard
gunfire. She testified that she saw a man get out of the passen-
ger side of the van, walk between two cars (the location where
Campos was later found dead), lean over, fire a gun at the
ground a couple times, and get back in the van before it drove
away. She identified Anaya as the shooter in a live line-up at
the police station three weeks later, but she was not asked to
identify Anaya as the shooter during the trial.
The jury returned a verdict convicting Anaya of conspiring
to participate in racketeering, a violation of 18 U.S.C. § 1962(d),
and conspiring to distribute illicit drugs, a violation of 21
U.S.C. §§ 841(b)(1)(A), 846. The jury found Anaya not guilty of
Campos’ murder.
4 Nos. 13-2169, 13-2189, 13-2892 & 13-3177
The jury answered special interrogatories about Anaya’s
racketeering conspiracy conviction; it found that the charge
was not associated with Campos’ murder, the distribution of
more than five kilograms of cocaine, nor the distribution of
1,000 kilograms or more of marijuana. The jury did find,
however, that Anaya’s conviction for conspiring to traffic
narcotics involved more than five kilograms of cocaine and
1,000 kilograms or more of marijuana. The district court
sentenced Anaya to 360 months’ imprisonment for each count,
to be served concurrently.
B. Oscar Gonzalez
Oscar Gonzalez was charged with one count of conspiracy
to participate in racketeering and one count of conspiracy
to distribute a controlled substance. The crime underlying
the racketeering charge involved an incident in May 2008,
when Gonzalez, accompanied by several Latin Kings gang
members, fired guns into a tavern in East Chicago, Indiana,
killing one person. In exchange for concessions from the
government, Gonzalez agreed to plead guilty to both counts
and expressly waived his right to appeal his conviction and
sentence on any ground except a claim of “ineffective assis-
tance of counsel relate[d] directly to th[e] waiver or its negotia-
tion.” The district court reviewed the plea agreement with
Gonzalez, advised him of the rights he was giving up, and
reinforced the permanence of that decision. The district court
found that Gonzalez knowingly and voluntarily entered his
plea of guilty, accepted the plea, and imposed a sentence of 240
months’ imprisonment.
Nos. 13-2169, 13-2189, 13-2892 & 13-3177 5
C. Sisto Bernal
Sisto Bernal’s legal proceeding was similar to that of
Gonzalez. Bernal was charged with one count of interfering
with commerce by threats or violence, one count of conspiracy
to participate in racketeering, and one count of conspiracy to
distribute a controlled substance. In exchange for concessions
from the government, Bernal agreed to plead guilty to both
counts and expressly waived his right to appeal his conviction
and sentence. The waiver signed by Bernal is verbatim to that
signed by Gonzalez. A magistrate judge reviewed the plea
agreement with Bernal, advised him of the rights he was giving
up, found that he knowingly and voluntarily entered his guilty
plea, and recommended that the district court accept the plea.
The district court accepted the recommendation and imposed
a sentence of 288 months’ imprisonment.
D. Dante Reyes
Again, Dante Reyes’ proceeding was just like his co-
defendants. He was charged with one count of conspiracy to
participate in racketeering and one count of conspiracy to
distribute a controlled substance. In exchange for concessions
from the government, Reyes agreed to plead guilty to the one
count of conspiracy to distribute illicit drugs and expressly
waived his right to appeal his conviction and sentence. Reyes
signed the same waiver as Gonzalez and Bernal. The district
court reviewed the plea agreement with Reyes, advised him of
the rights he was giving up, and reinforced the permanence of
that decision. The district court found that Reyes knowingly
and voluntarily entered his plea of guilty, accepted the plea,
and imposed a sentence of 262 months’ imprisonment.
6 Nos. 13-2169, 13-2189, 13-2892 & 13-3177
II. DISCUSSION
A. Martin Anaya
Anaya does not appeal his conviction but raises three
substantive challenges to his sentence. First, Anaya argues that
the district court erred when it enhanced his sentence based on
a finding that Anaya killed Campos, conduct that he had been
acquitted of; second, he attacks the drug quantity attributed to
his conspiracy to traffic narcotics conviction; and last, he
contends that his sentence is substantively unreasonable.
We review an appellant’s claims regarding the district
court’s legal conclusion and sentencing procedures de novo.
United States v. Annoreno, 713 F.3d 352, 356–57 (7th Cir. 2013).
We review a district court’s factual findings at sentencing for
clear error and only reverse if we are “left with the definite and
firm conviction that a mistake has been committed.” United
States v. Claybrooks, 729 F.3d 699, 706 (7th Cir. 2013) (internal
quotation and citations omitted). “Likewise, we defer to a
district court's determination of witness credibility, which can
virtually never be clear error.” United States v. Pulley, 601 F.3d
660, 664 (7th Cir. 2010) (citing United States v. Acosta, 534 F.3d
574, 584 (7th Cir. 2008)).
1. The District Court’s Use of Acquitted Conduct as
a Sentencing Enhancement
It has long been established that “a sentencing court may
consider conduct of which a defendant has been acquitted.”
United States v. Watts, 519 U.S. 148, 154 (1997). We have since
clarified that “[a]ll an acquittal means is that the trier of fact,
whether judge or jury, did not think the government had
Nos. 13-2169, 13-2189, 13-2892 & 13-3177 7
proved its case beyond a reasonable doubt.” United States v.
Horne, 474 F.3d 1004, 1006 (7th Cir. 2007). The facts which a
judge relies upon to determine the term of a defendant’s
sentence “need be found only by a preponderance of the
evidence, the normal civil standard.” Id. Given the difference
in standards of proof, there was no error in the district court’s
legal conclusion that it could consider Anaya’s culpability for
Campos’ death at the sentencing hearing.
Turning to the district court’s factual findings at sentencing,
it appears that the district court relied heavily on the credibility
of the witnesses. It found the testimony of the Latin Kings to be
“questionable,” whereas, it found Wilhelm’s and Mary Gonza-
lez’s testimony to be “credible” and “consistent.” We find no
error in the district court’s reliance on the testimony from one
of the survivors of the Latin Kings’ attack, supported by the
statements of an uninterested bystander. We defer to the
district court’s determination of credibility, and this evidence
easily supported its finding that Anaya was responsible for
Campos’ murder by a preponderance.
2. The District Court’s Drug Quantity Finding
Next, we turn to Anaya’s drug conviction. The jury found
Anaya guilty of a drug trafficking conspiracy and explicitly
found over five kilograms of cocaine and 1,000 kilograms of
marijuana were distributed over the course of the conspiracy.
At sentencing, the district court found that a preponderance of
the evidence supported that Anaya and his co-conspirators
distributed over 150 kilograms of cocaine and 1,000 kilograms
of marijuana. Anaya wants the precise drug amount proven to
a jury, but this is not what the law requires.
8 Nos. 13-2169, 13-2189, 13-2892 & 13-3177
The Sixth Amendment, in conjunction with Due Process,
requires that “any fact that increases the mandatory minimum”
or the statutory maximum sentence be proved to a jury beyond
a reasonable doubt. United States v. Alleyne, 135 S. Ct. 2151,
2155 (2013); see also Apprendi v. New Jersey, 530 U.S. 466, 490
(2000). A conviction for trafficking more than five kilograms of
cocaine or more than 1,000 kilograms of marijuana carries a
statutory minimum sentence of ten years and a maximum of
life. See 21 U.S.C. § 841(b)(1)(A). As long as the court stays
within the statutory sentencing minimum and maximum, in
this case ten years to life, it has the discretion to impose a
sentence based on the precise drug quantity attributable to the
defendants’ conspiracy by a preponderance of the evidence.
United States v. Medina, 728 F.3d 701, 705 (7th Cir. 2013); see also
U.S.S.G. § 2D1.1(c).
We turn again to the district court’s factual findings,
particularly the finding that 150 kilograms of cocaine could be
attributed to Anaya. For a conviction of conspiring to traffic
narcotics, a sentencing court can include not only the drugs the
defendant directly sold or knew about, but can also include the
“reasonably foreseeable quantity of drugs sold by his or her co-
conspirators” in its calculation of drug quantity attributable to
the defendant. United States v. Seymour, 519 F.3d 700, 710–11
(7th Cir. 2008). A defendant’s long tenure and critical role in an
organization support the finding that the defendant can be
held accountable for the aggregate amount of drugs attribut-
able to all the conspirators. Id. at 711.
The district court sentenced Anaya based on the quantity of
drugs distributed by his entire group of co-conspirators
because Latin Kings gang members testified that it was “no
Nos. 13-2169, 13-2189, 13-2892 & 13-3177 9
secret” that Anaya’s region distributed large amounts of
cocaine and marijuana. Anaya was a member of the Latin
Kings for roughly twenty-one years. Although he spent a
number of those years in prison, he never withdrew from the
conspiracy. He was an “Inca,” the leader of his chapter, at one
point and also held a position as an “Enforcer.” Anaya at-
tended meetings, at which drug distribution was often a topic,
and he personally sold drugs anytime he had the opportunity.
The district court found that as a leader and long-term gang
member, Anaya knew and benefitted from the large amount of
drugs the gang sold. We see no error in the district court’s
decision to attribute the amount of drugs distributed by
Anaya’s co-conspirators to set his Sentencing Guidelines range.
3. The Substantive Reasonableness of Anaya’s
Sentence
Anaya’s final argument is that his 360-month sentence is
substantively unreasonable because none of his co-defendants
received a sentence longer than he did. Anaya thus claims that
his sentence created an unwarranted disparity with his co-
defendants’ sentences. His argument fails for a couple reasons.
When deciding the length of a defendant’s sentence, the
court considers a multitude of factors, one being the “need to
avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar
conduct.” 18 U.S.C. § 3553(a)(6). Unwarranted disparities result
when the court relies on things like alienage, race, and sex
to differentiate sentence terms. United States v. Boscarino, 437
F.3d 634, 638 (7th Cir. 2006). However, a defendant’s coopera-
tion should be rewarded and is a warranted disparity in
10 Nos. 13-2169, 13-2189, 13-2892 & 13-3177
sentencing. Id. The Boscarino court reasoned that “[t]here
would be considerably less cooperation—and thus more
crime—if those who assist prosecutors could not receive lower
sentences compared to those who fight to the last.” Id. Anaya
was the only one of twenty-two defendants that refused to
cooperate with the government and the difference in his
sentence is warranted.
Secondly, the main goal of the Sentencing Reform Act was
to “treat similar offenders similarly,” so a sentence within a
properly constructed Sentencing Guidelines range is presump-
tively reasonable and “cannot be treated as unreasonable by
reference to § 3553(a)(6).” Id. Likewise, a sentence below the
applicable Sentencing Guidelines range cannot be an unwar-
ranted disparity. United States v. Pape, 601 F.3d 743, 750; United
States v. Nania, 724 F.3d 824, 840 (7th Cir. 2013). The recom-
mended sentence for Anaya pursuant to the Sentencing
Guidelines was life, and he received 360 months; Anaya’s
substantive challenge is foreclosed.
4. The Government’s Concession of Error
On the eve of the oral argument, the government discov-
ered a technical error in Anaya’s sentence. On page two of
Anaya’s Judgment, the district court described the terms of the
racketeering conspiracy and the drug distribution conspiracy
convictions as 360 months each, to be served concurrently;
however, the maximum sentence for a general racketeering
conviction is twenty years. See 18 U.S.C. § 1963(a).
Recall, any fact that increases the statutory maximum
sentence must be proved to a jury beyond a reasonable doubt.
Apprendi, 530 U.S. at 490. In this case, the jury found Anaya
Nos. 13-2169, 13-2189, 13-2892 & 13-3177 11
guilty of conspiring to participate in racketeering, but it also
found the government did not prove beyond a reasonable
doubt that Anaya’s racketeering activities involved Campos’
murder, the distribution of more than five kilograms of
cocaine, or the distribution of 1,000 kilograms of marijuana.
Without the jury’s finding of a fact (murder) that increases the
maximum sentence for racketeering beyond twenty years, see,
e.g., 18 U.S.C. § 1959(a)(1), the district court’s statement that the
term of Anaya’s racketeering conviction is 360 months is
clearly an error.
Accordingly, we remand Anaya’s case to allow the district
court to correct Anaya’s Judgment to reflect that his racketeer-
ing conviction can only be for a maximum of twenty years. We
affirm all other aspects of his sentence.
B. Oscar Gonzalez, Sisto Bernal, and Dante Reyes
In exchange for concessions from the government, Oscar
Gonzalez, Sisto Bernal, and Dante Reyes pleaded guilty. They
agreed to waive their rights to appeal their convictions and
sentences on all grounds except for a claim of “ineffective
assistance of counsel relate[d] directly to th[e] waiver or its
negotiation.” After they were sentenced, they each separately
notified the district court of their intent to file a direct appeal.
This court appointed counsel for all three appellants. Counsel
for Gonzalez and Bernal concluded that the appeal would be
frivolous and moved to withdraw under Anders v. California,
386 U.S. 738, 744 (1967).
Unlike Gonzalez’s and Bernal’s attorneys, Reyes’ counsel
concluded that a direct appeal was not frivolous. Counsel
argues that the district court failed to have a sufficient colloquy
12 Nos. 13-2169, 13-2189, 13-2892 & 13-3177
with Reyes before accepting his guilty plea. Counsel contends
that the district court should have asked Reyes to explain
his own understanding of what the consequences would
have been if he changed his plea to guilty. Counsel relies
on United States v. Frye, 738 F.2d 196, 201 (7th Cir. 1984), to
support his proposition that Reyes’ predominantly “yes” and
“no” responses to the court’s questions inadequately tested
Reyes’ understanding of the charges against him. We first
address the argument made by Reyes’ counsel.
It is without question that a defendant’s guilty plea must be
knowing and voluntary. Henderson v. Morgan, 426 U.S. 637, 647
(1976); United States v. Adams, 747 F.3d 734 (7th Cir. 2014);
United States v. Walker, 721 F.3d 828, 842 (7th Cir. 2013). To
ensure that a plea of guilty is entered knowingly and volun-
tarily, Fed. R. Crim. P. 11(b) prescribes a set of questions to
guide federal courts’ colloquies with defendants. We rely on
the record of the colloquy because it is conducted under oath
and has a “presumption of verity.” United States v. Adams, 746
F.3d 734, 746 (7th Cir. 2014) (quotations and citations omitted).
The Frye court recognized that “[w]hether a colloquy is
sufficient in a particular case will depend on the facts of that
case.” 738 F.2d at 201 (co-defendants were represented by the
same counsel and the district court did not adequately test the
conflict of interest before accepting a guilty plea). However, the
lone fact that a defendant responds to the court’s questions
with only “yes” or “no” answers does not defeat the presump-
tion that his answers were truthful and that he actually
understood the consequences of changing his plea to guilty.
United States v. Alcala, 678 F.3d 574, 579 (7th Cir. 2012).
Nos. 13-2169, 13-2189, 13-2892 & 13-3177 13
The Alcala court held that the guilty plea of a native
Spanish-speaking defendant was knowing and voluntary even
though he had an eighth grade education and predominantly
answered “yes” or “no.” Id. Here, Reyes has a master’s degree
and speaks fluent English, so it seems apparent that he could
understand the district court’s questions and knowingly plead
guilty when he answered “yes” and “no” during the Rule 11
colloquy. Without more, counsel’s proposition that Reyes must
engage in a verbose colloquy with the district court before it
can accept his guilty plea is more than Rule 11 or Frye require.
Now we turn to the Anders briefs filed by Gonzalez’s and
Bernal’s counsel. Because of the briefs’ non-advocacy nature,
we “‘limit our review to the subjects that counsel has dis-
cussed, plus any additional issues that the defendant, disagree-
ing with counsel, believes have merit.’” United States v. Bey, 748
F.3d 774, 776 (7th Cir. 2014) (quoting United States v. Wagner,
103 F.3d 551, 553 (7th Cir. 1996)). We invited Gonzalez and
Bernal to respond to their attorneys’ motions to withdraw; but
they did not. See Cir. R. 51(b). The briefs filed by Gonzalez’s
and Bernal’s counsel appear to be thorough and address the
types of issues congruent with appeals of this nature, so we
limit our review to the subjects that counsel addressed.
A defendant’s plea agreement often contains a provision
waiving his right to appeal and that appeal waiver stands or
falls with the guilty plea. United States v. Zitt, 714 F.3d 511, 515
(7th Cir. 2013). Here, Gonzalez’s and Bernal’s appellate counsel
believe that their clients knowingly and voluntarily pleaded
guilty, and their appeal is frivolous because they forfeited their
right to appeal in their plea agreements. We agree. Gonzalez
and Bernal engaged in proper Rule 11 colloquies, substantially
14 Nos. 13-2169, 13-2189, 13-2892 & 13-3177
similar to Reyes, “and that means [their] waiver[s] [are]
enforceable.” Id.
With the indictment of twenty-three defendants and plea
bargains negotiated for twenty-one of them, this case exempli-
fies Justice Burger’s sentiment that, “‘plea bargaining,’ is an
essential component of the administration of justice. Properly
administered, it is to be encouraged.” Santobello v. New York,
404 U.S. 257, 260 (1971). The plea bargains for appellants
Gonzalez, Bernal, and Reyes were properly administered (i.e.,
the prosecutors did not break any promises, the district court
followed Rule 11, and the defendants knowingly and volun-
tarily waived their right to appeal). Furthermore, no exceptions
to their waivers exist because the district court did not rely on
any constitutionally impermissible factor when it imposed
their sentences and the sentences do not exceed the statutory
maximum of life in prison. Jones v. United States, 167 F.3d 1142,
1144 (7th Cir. 1999); see also 21 U.S.C. § 841(b)(1)(A). The appeal
waivers in the defendants’ plea agreements preclude our
review of these three appeals.
III. CONCLUSION
We AFFIRM Anaya’s sentence in part and REMAND for
the LIMITED PURPOSE of correcting the Judgment. We
DISMISS the appeals of Gonzalez, Bernal, and Reyes. Accord-
ingly, we GRANT the motions filed by counsel for Gonzalez
and Bernal.