United States v. Melero, Hugo ( 2007 )

NONPRECEDENTIAL DISPOSITION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 February 22, 2007
Decided March 9, 2007
Before
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 06-2884
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 04 CR 1079
HUGO MELERO,
Defendant-Appellant. Charles R. Norgle, Sr.,
Judge.
ORDER
In April 2005, the government filed a 33-count indictment against Hugo
Melero and 11 other individuals based on their respective roles in a drug conspiracy
in the Pullman neighborhood on Chicago’s South Side. Mr. Melero entered a blind
plea of guilty to all nine counts of the indictment in which he was named. Applying
No. 06-2884 Page 2
the guidelines as advisory, the district court sentenced him to 222 months’
imprisonment, the low end of the applicable range of 210 to 262 months. On appeal,
he contends that his sentence is not entitled to a presumption of reasonableness,
that the district court failed to take into account the mitigating factors he presented
at sentencing, and that his sentence is unreasonable because it is greater than
necessary to satisfy the factors in 18 U.S.C. § 3553(a). Because Mr. Melero’s
sentence is reasonable in light of his criminal history and the seriousness of his
offense, we affirm the district court’s sentence.
I
BACKGROUND
Mr. Melero, an “enforcer” in the Latin Kings street gang in Chicago, was part
of a conspiracy that sold cocaine to a DEA confidential source and a DEA
undercover officer on three separate occasions. In April 2005, he was indicted on
one count of conspiring to distribute and possess with the intent to distribute
marijuana and five or more kilograms of cocaine, 21 U.S.C. § 846, three counts of
distributing cocaine, id. § 841(a)(1), one count of distributing more than 500 grams
of cocaine, id., and four counts of using a telephone to facilitate a drug offense, id.
§ 843(b). He entered a blind plea of guilty to all nine counts and admitted that his
offenses involved more than 5 kilograms but less than 15 kilograms of cocaine.
At sentencing the district court determined that Mr. Melero’s base offense
level was 32 because of his admission as to the amount of drugs involved in his
offenses. See U.S.S.G. § 2D1.1(a)(3), (c)(4). He received a two-level upward
adjustment for possession of a firearm, id. § 2D1.1(b)(1), and a second two-level
upward adjustment for lying in his plea declaration about the role of his co-
defendants in the conspiracy, id. § 3C1.1, for a total offense level of 36. He had a
criminal history category of two and his corresponding advisory guidelines range
was 210 to 262 months.
Mr. Melero did not object to the guidelines calculation but argued instead
that a sentence at the bottom of the advisory range was sufficient to comply with
the § 3553(a) sentencing factors. In particular, he pointed to childhood hearing loss,
learning disabilities, his obesity and other poor health issues, depression suffered
because of his father’s terminal illness, problems with marijuana and alcohol, his
interest in furthering his education and his timely guilty plea as factors that
mitigated the need for a severe sentence. The district court rejected his arguments
and sentenced him at the low end of the guidelines range, 222 months’
imprisonment, five years’ supervised release and a $900 special assessment.
No. 06-2884 Page 3
II
ANALYSIS
Mr. Melero first argues that his sentence is not reasonable per se because it
falls within a properly calculated guidelines range.1 His argument misunderstands
the role of the guidelines in determining whether a sentence is reasonable. After
the Supreme Court’s decision in United States v. Booker, appellate courts review
sentences for unreasonableness based on the sentencing criteria found in 18 U.S.C.
§ 3553(a). 543 U.S. 220, 261-62 (2005); United States v. Alburay, 415 F.3d 782, 786
(7th Cir. 2005). The guidelines themselves do not bestow reasonableness upon a
sentence. See United States v. Demaree, 459 F.3d 791, 794-95 (7th Cir. 2005).
Sentences within a properly calculated guidelines range are presumed reasonable
by a reviewing court because the guidelines calculations take into consideration the
sentencing factors of § 3553(a). United States v. Gama-Gonzalez, 469 F.3d 1109,
1110 (7th Cir. 2006). As we have noted, “It will be the rare sentence indeed that
was required under the Guidelines before Booker but forbidden afterward, when
discretion has gone up rather than down.” Id.Mr. Melero next argues that the district court failed to follow the proper
procedure in determining his sentence because the court did not adequately
consider the mitigating factors that he presented at sentencing. After Booker, the
sentencing court must first correctly calculate the advisory guidelines range.
United States v. Rodriguez-Alvarez, 425 F.3d 1041, 1046 (7th Cir. 2005). Next the
defendant must be given the opportunity to bring to the court’s attention any
factors under § 3553(a) that might warrant a sentence below the guidelines range.
United States v. Dean, 414 F.3d 725, 730 (7th Cir. 2005). The court must consider
those factors in selecting an appropriate sentence, although it need not expressly
address all of them. United States v. Williams, 425 F.3d 478, 480 (7th Cir. 2005).
When the court selects a sentence within the guidelines range, it is enough that
“the record confirms that the judge has given meaningful consideration to the
section § 3553(a) factors.” Id.
The district court completed each of these required steps in this case. First,
Mr. Melero does not dispute that the court correctly calculated the applicable
1
The Supreme Court recently granted certiorari to consider whether it is
consistent with United States v. Booker, 543 U.S. 220 (2005), to accord a presumption
of reasonableness to a sentence within the guidelines range. See United States v.
Rita, No. 05-4674, 2006 WL 1144508 (4th Cir. May 1, 2006), cert. granted, 127 S. Ct.
551 (2006) (No. 06-5754). As we discuss below, we do not need to rely on the
presumption to determine that Mr. Melero’s sentence is reasonable.
No. 06-2884 Page 4
guidelines range. Next, he was allowed to argue the § 3553(a) sentencing factors in
his objections to the Presentence Investigation Report and at the sentencing
hearing. The district court explicitly stated that the guidelines were advisory, and
then thoroughly explained the factors considered in the sentencing determination,
including Mr. Melero’s criminal behavior over the prior 10 years, see 18 U.S.C.
§ 3553(a)(1), the failure of his prior arrests to deter his criminal conduct, see id. §
3553(a)(2)(C), the seriousness of his current offenses, see id. § 3553(a)(2)(A), and
Congress’s intent to deter persons from violating the law by providing steep
maximum sentences for these offenses, see id. § 3553(a)(B). The district court also
recognized that he should not ignore Mr. Melero’s guilty plea in fashioning an
appropriate sentence. Thus, the record provides sufficient support to conclude that
the district court meaningfully considered the § 3553(a) factors after Mr. Melero
was given an opportunity to make his argument for a sentence at the bottom of the
guidelines range.
Nevertheless, Mr. Melero argues that his sentence is unreasonable because a
sentence of 210 months would have fulfilled the requirements of § 3553(a). He asks
us to balance the § 3553(a) factors and disagree with the district court’s
determination of that balance. But we have said repeatedly that we will not
reweigh the § 3553(a) factors. See, e.g., United States v. Baker, 445 F.3d 987, 991
(7th Cir. 2006); United States v. Newsom, 428 F.3d 685, 686-87 (7th Cir. 2005). The
issue before us is not whether another sentence would also be reasonable, rather,
the issue is whether the sentence imposed by the district court is reasonable.
United States v. Lopez, 430 F.3d 854, 857 (7th Cir. 2005).
Because the district court imposed a reasonable sentence after following the
proper sentencing procedures, we affirm the sentence imposed by the district court.