United States v. Steven Mendoza ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18-2538, 18-3045, 18-3088, 19-1335, 19-1591, 19-1612, &
19-3405
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GERARDO SANCHEZ, EDGAR ROQUE, PHILLIP DIAZ, RICHARD
ROQUE, OMAR RAMIREZ, STEVEN G. MENDOZA, & JUAN J.
CERVANTES,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:15-CR-00485 — Virginia M. Kendall, Judge.
____________________
ARGUED SEPTEMBER 30, 2020 — DECIDED MARCH 1, 2021
____________________
Before SYKES, Chief Judge, and WOOD and BRENNAN, Circuit
Judges.
BRENNAN, Circuit Judge. The Roque drug trafficking organ-
ization moved in excess of 1,500 kilograms of cocaine and 100
kilograms of heroin from Mexico to Chicago for distribution
and sale. The experienced district court judge who presided
2 Nos. 18-2538 et al.
over these consolidated cases had never seen “the level of
drugs that were pumped into Chicago” by this criminal enter-
prise. On appeal, the Roque organization defendants largely
responsible for these crimes—Gerardo Sanchez, Edgar Roque,
Phillip Diaz, Richard Roque, Omar Ramirez, Steven Men-
doza, and Juan Cervantes—do not dispute their convictions,
but rather contest their sentences.
Although each defendant appeals individually, they raise
many of the same arguments. Most contend the district court
misinterpreted the need to avoid unwarranted sentencing dis-
parities under § 3553(a)(6) and failed to adequately consider
their arguments on this issue. Two of those defendants also
challenge the district court’s application of the Sentencing
Guidelines, and two other defendants contest the imposition
of certain supervised release conditions.
We conclude that the district court committed no error.
The district court properly avoided unwarranted sentencing
disparities, correctly applied the Sentencing Guidelines, and
appropriately imposed supervised release conditions, with
one minor exception that we order to be amended as neces-
sary. In all other respects, we affirm the defendants’ sen-
tences.
I
The Roque organization may have ended in Chicago, but
it began in Los Angeles. In 2010, E. Roque joined with Sergio
Ochoa and Jose Ochoa to obtain and distribute large amounts
of drugs between the two cities. The trio bought the drugs in
Los Angeles, transported them for sale within Chicago, and
sent the proceeds back to Mexico. Although working in
unison with the Ochoas, E. Roque kept his own crew, which
included his brother R. Roque and Manuel Aragon Contreras.
Nos. 18-2538 et al. 3
E. Roque’s distribution relationship with the Ochoa broth-
ers eventually ended. In 2012, the Ochoas split from E. Roque,
and in 2013, Contreras defected to the Ochoas. Together, they
formed the Ochoa/Contreras drug trafficking organization.
This new group, although sharing similar origins and engag-
ing in similar conduct, existed separate and apart from the
Roque organization from which it sprang. With the Ochoas
gone, E. Roque alone ran what remained of the original or-
ganization and continued with his distribution efforts be-
tween Los Angeles and Chicago.
Like most criminal enterprises, the Roque organization
had a hierarchy. E. Roque sat at the top. One step below came
P. Diaz, E. Roque’s brother-in-law who worked as a supervi-
sor of sorts. Further down, R. Roque assisted in all elements
of the drug trafficking. The mid-to-lower level members—
those responsible for delivering narcotics and working the
stash houses—included Sanchez, Mendoza, Ramirez, and J.
Cervantes. Ivan Diaz (P. Diaz’s brother), Angela Cervantes (J.
Cervantes’s sister), and Anthony Koon also operated within
the middle tier. This hierarchical structure facilitated the
Roque organization’s drug trafficking, money laundering,
and firearm possession.
Drug Trafficking. The Roque organization principally used
Amtrak Express, a package shipping service, to transport
drugs between Los Angeles and Chicago. To help, E. Roque
recruited someone inside Amtrak’s Los Angeles facility to en-
sure that the packages avoided inspection or confiscation.
These smuggled packages ranged in size from three to forty
kilograms of cocaine and one to two kilograms of heroin.
When a shipment arrived in Chicago at Union Station, a mem-
ber of the Roque organization would collect the package,
4 Nos. 18-2538 et al.
store it at a stash house, and then deliver it as instructed by E.
Roque. Between 2012 and 2015, the Roque organization
moved at least 159 packages of cocaine or heroin by Amtrak
Express from Los Angeles to Chicago.
Money Laundering. The Roque organization also laundered
the illicit proceeds from its drug trafficking. Lower-level
members, at the direction of E. Roque, deposited funds into
the bank accounts of E. Roque himself, R. Roque, P. Diaz, and
Sanchez—all in their own names. To avoid bank reporting re-
quirements, these lower-level members deposited the drug
proceeds in increments of less than $10,000. The higher-rank-
ing members then used these deposits to benefit themselves
and to distribute funds throughout the Roque organization.
Firearm Possession. Firearms went hand-in-hand with this
drug trafficking. When arresting Ramirez and Mendoza, law
enforcement found a loaded AK-47 and Glock pistol at
Ramirez’s residence, and an assault rifle and associated am-
munition (along with shooting targets emblazoned with “F***
the Police”) at Mendoza’s residence. Roque organization
members also bragged about their firearms via Instagram di-
rect messages to each other. For example, Mendoza sent a
photo that depicted a hand holding an automatic rifle with a
silencer attached. The photo’s caption, translated into English,
warned of a “rain of bullet[s] for the snitches.”
II
These appeals concern the sentences of the seven Roque
defendants. To provide necessary context for their arguments
that they received disparate sentences in violation of 18 U.S.C.
§ 3553(a)(6), we describe the sentences given to the other
members of the Roque organization and members of the
Nos. 18-2538 et al. 5
Ochoa/Contreras organization.1 The U.S. District Court for
the Northern District of Illinois adjudicated all of these cases.
Judge Virginia Kendall sentenced the Roque organization de-
fendants, and Judge Robert Gettleman sentenced the
Ochoa/Contreras organization defendants.2
A
First, we describe the sentences of the seven Roque de-
fendants imposed by Judge Kendall. Each pleaded guilty to
either one or two counts of the fourth superseding indictment.
All seven—Sanchez, E. Roque, P. Diaz, R. Roque, Ramirez,
Mendoza, and J. Cervantes—pleaded guilty to Count One,
which charged a conspiracy to possess with intent to distrib-
ute, and to distribute, at least one kilogram of heroin and five
kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and
846. Four—Sanchez, E. Roque, P. Diaz, and R. Roque—also
pleaded guilty to Count Seven, which charged a conspiracy to
engage in money laundering in violation of 18 U.S.C.
§ 1956(h).
1. Sanchez
Sanchez, a courier and money launderer, received a total
sentence of 210 months’ imprisonment, composed of 162
months on Count One and 48 months on Count Seven served
consecutively. During sentencing, Judge Kendall found him
1 Title 18 U.S.C. § 3553(a), the familiar mandate of factors to be con-
sidered when imposing a sentence, provides in part: “The court, in deter-
mining the particular sentence to be imposed, shall consider— … (6) the
need to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct.”
2 For clarity, we note which district court judge presided over the
cases involving each organization.
6 Nos. 18-2538 et al.
responsible for 231 kilograms of cocaine and 20 kilograms of
heroin. Sanchez’s 210-month sentence fell at the bottom of his
guidelines range of 210 to 262 months.
Judge Kendall imposed supervised release conditions,
two of which are relevant here: no contact with any codefend-
ants and drug treatment. First, Judge Kendall orally imposed
a condition banning Sanchez from “communicating and be-
ing engaged with his co-defendants in this activity.” But the
no-contact condition in his written judgment of conviction in-
cluded two codefendants who pleaded guilty before the
fourth superseding indictment—Koon and Jorge Luis Ochoa-
Canela. Second, on drug treatment, Judge Kendall instructed
the probation officer to conduct an “evaluation … to deter-
mine whether [Sanchez] needs any treatment when he’s on
release, whatever condition would be for that.” Sanchez’s
written judgment included the related condition that he “shall
participate, at the direction of a probation officer, in a sub-
stance abuse treatment program, which may include urine
testing up to a maximum of 104 tests per year.”
2. E. Roque
E. Roque, the leader of the Roque organization, received a
total sentence of 420 months’ imprisonment, composed of 300
months on Count One and 120 months on Count Seven served
consecutively. During sentencing, Judge Kendall found him
responsible for 1,500 kilograms of cocaine and 100 kilograms
of heroin. E. Roque’s 420-month sentence fell below his guide-
lines range of life imprisonment.
Concerning unwarranted sentencing disparities under
§ 3553(a)(6), both E. Roque and the government noted the var-
ious sentences that Judge Gettleman gave the Ochoa/Contre-
ras defendants. E. Roque’s counsel remarked that the Roque
Nos. 18-2538 et al. 7
and Ochoa/Contreras cases were “directly related” and that
the Ochoa/Contreras defendants “should be in here to give
the Court … the full picture.” When E. Roque’s counsel re-
ferred to the sentences of S. Ochoa (180 months by Judge
Kendall) and Navarro-Galvan (58 months in a different dis-
trict court), Judge Kendall interjected: “Neither of those are
my sentences, right?”3 E. Roque’s counsel confirmed that fact
and later concluded that “I’m requesting that [E. Roque] be
sentenced to the 180 months, the same as Sergio Ochoa, as it’s
our opinion that he was in the same or parallel type case as
Mr. Roque.” By contrast, the government had previously re-
jected any comparison to S. Ochoa’s sentence, calling it an
“outlier.”
In arriving at E. Roque’s sentence under § 3553(a), Judge
Kendall did not directly mention unwarranted disparities, but
she did describe the scope, structure, and severity of the
Roque organization conspiracy.
3. P. Diaz
P. Diaz, a lower-level worker, received a total sentence of
250 months’ imprisonment, composed of 250 months on
Count One and 120 months on Count Seven served concur-
rently. During sentencing, Judge Kendall found him respon-
sible for between 150 and 450 kilograms of cocaine, as well as
supervising the group and running a stash house. P. Diaz’s
250-month sentence fell below his guidelines range of 292 to
365 months.
3 Judge Dana M. Sabraw of the U.S. District Court for the Southern
District of California sentenced Navarro-Galvan to time served, after he
had been imprisoned for 58 months.
8 Nos. 18-2538 et al.
P. Diaz argued he should receive a similar sentence to
Koon (108 months by Judge Kendall) to avoid unwarranted
sentencing disparities under § 3553(a)(6). The government re-
jected that comparison, drew one to Sanchez, and argued that
P. Diaz’s greater involvement merited a longer sentence. The
government also rejected any comparison to the sentence
given to S. Ochoa (180 months by Judge Gettleman), asserting
“it’s an apples to oranges comparison.” Because “[t]he drugs
that are being moved and the way that [the Ochoa/Contreras
organization is] moving drugs is totally separate than the way
that [the Roque] organization was operating,” according to
the government, “you really can’t compare on[e] to the
other.” Judge Kendall then asked, “[a]nd I just gave Mr.
Roque 300 and 120; is that correct? 420 all together?” to which
the government responded, “[c]orrect.” P. Diaz’s counsel also
contrasted P. Diaz’s situation with that of E. Roque and R.
Roque, among others: “Phil Diaz is not Edgar Roque. He’s not
Richard Roque. He’s not part of the original four that created
this conspiracy at its inception that started way back in 2010.
He’s just a kid.”
In fashioning P. Diaz’s sentence under § 3553(a), Judge
Kendall declared that “part of my sentence is significantly
based upon the roles of the different conspirators here.” When
rejecting the government’s request for a higher sentence,
Judge Kendall additionally noted that “looking at the original
guideline range of 292 to what Mr. Roque received, a 300,
that’s just not enough divergence between the activity range
as far as how long he was involved as well as his involvement,
and Mr. Roque’s involvement was clearly more significant.”
Nos. 18-2538 et al. 9
4. R. Roque
R. Roque, a “trusted” member of the Roque organization,
received a total sentence of 210 months’ imprisonment, based
on 210 months on Count One and 48 months on Count Seven
served concurrently. During sentencing, Judge Kendall found
him responsible for at least 500 kilograms of cocaine and 100
kilograms of heroin. R. Roque’s 210-month sentence fell at the
bottom of his guidelines range of 210 to 262 months.
R. Roque argued in his sentencing memorandum for a sen-
tence proportionate to those of Contreras (140 months by
Judge Gettleman), Sanchez (210 months by Judge Kendall),
and I. Diaz (108 months by Judge Kendall). In discussing the
minor role reduction at sentencing, R. Roque’s counsel also
drew distinctions between R. Roque’s conduct and the con-
duct of E. Roque, I. Diaz, Sanchez, Ochoa-Canela, and
Contreras. Judge Kendall nevertheless rejected the minor role
reduction and later found that R. Roque “understood the
scope and the structure. And we certainly have the defendant
here understanding, with his brother, the scope and the struc-
ture of how this is going to operate.” The government also
situated R. Roque within the larger Roque organization and
argued for a 216-month sentence, one between Sanchez’s
210-month sentence and P. Diaz’s 250-month sentence.
When crafting R. Roque’s sentence under § 3553(a), Judge
Kendall noted R. Roque’s “integral role in [the Roque organi-
zation] with [his] brother.” But Judge Kendall did not directly
address the sentences given to E. Roque, Sanchez, Ochoa-
Canela, and Contreras.
Judge Kendall discussed three relevant supervised release
conditions for R. Roque, concerning drug treatment, proba-
tion visits, and community service. First, Judge Kendall
10 Nos. 18-2538 et al.
ordered R. Roque to “participate at the direction of the proba-
tion officer in a substance abuse treatment program.” She re-
marked: “So since I’m recommending drug treatment, it has
to be any use of alcohol until you graduate from that pro-
gram.” Second, Judge Kendall stated that R. Roque should
permit probation to visit designated locations at “any reason-
able time.” And third, Judge Kendall, appearing to direct
comments toward the probation officer, rejected the presen-
tence investigation report’s recommendation for community
service: “What I recommend, instead, is if, after 60 days of su-
pervision, he is unemployed, and then — then you’re required
to file a notice with the Court, and we’ll bring him back in and
have a discussion as to what is the best position for him to be
in at that time.”
R. Roque did not register objections, although differences
remained between his written judgment of conviction and
Judge Kendall’s oral pronouncement. For drug treatment, the
written judgment banned alcohol during the entire term of
supervised release, not just until completion of a program.
The written judgment does not state that probation visits oc-
cur “at any reasonable time” and does not mention commu-
nity service.
5. Ramirez
Ramirez, another lower-level worker, received a total sen-
tence of 188 months’ imprisonment after his guilty plea to the
drug trafficking conspiracy in Count One. During sentencing,
Judge Kendall found him responsible for at least 299 kilo-
grams of cocaine and 20 kilograms of heroin, as well as pos-
session of a firearm. Ramirez’s 188-month sentence fell at the
bottom of his guidelines range of 188 to 235 months.
Nos. 18-2538 et al. 11
In their sentencing memoranda, Ramirez and the govern-
ment addressed the issue of unwarranted sentencing dispari-
ties. Ramirez referenced the sentences of E. Roque, R. Roque,
and S. Ochoa while the government listed the sentences given
to each member of the Roque organization and contrasted its
recommendation for Ramirez to Sanchez’s 210-month sen-
tence: “The controlling differences between Ramirez and
Gerardo Sanchez—the differences that necessitate a longer
sentence for Ramirez [—] are the defendant’s possession of
the firearms and the reckless conduct during his flight
from law enforcement endangering the public and the offic-
ers.” At sentencing, Judge Kendall asked the parties to con-
sider the larger roles of each codefendant: “So what I need
you to do for me in this case, which I’ve asked [Ramirez’s
counsel] to do each time as well, is we need to always look at
the co-defendants and the relationship between them so that
I’m accurately sentencing him for his role in the offense as
well.” Both sides did so. In particular, the sentences and con-
duct of Roque defendants Koon, Sanchez, and Mendoza each
came up, but the sentences and conduct of the Ochoa/Contre-
ras defendants did not.
In pronouncing Ramirez’s sentence, Judge Kendall ad-
dressed unwarranted disparities under 18 U.S.C. § 3553(a)(6).
She identified Sanchez as being “closest” to Ramirez and told
Ramirez that she had “to look at the other individuals that [he
was] sentenced with, and they each have different roles, and
[she had] to make sure that [he was] not given a greater or
lesser sentence.”
6. Mendoza
Mendoza, yet another lower-level worker, received a total
sentence of 150 months’ imprisonment after his guilty plea to
12 Nos. 18-2538 et al.
the drug trafficking conspiracy in Count One. During sentenc-
ing, Judge Kendall found him responsible for at least 72 kilo-
grams of cocaine and possessing a firearm in connection his
narcotics offense. Mendoza’s 150-month sentence fell within
his guidelines range of 135 to 168 months.
Judge Kendall applied a two-point enhancement under
U.S.S.G. § 2D1.1(b)(1) for Mendoza possessing a firearm. In
doing so, Judge Kendall relied upon Mendoza’s Instagram
message depicting an assault rifle and warning of a “rain of
bullet[s] for the snitches.” Mendoza’s counsel argued that this
was merely “a comment that’s made amongst friends.” But to
Judge Kendall, Mendoza deserved the two-point enhance-
ment because that message concerned the conspiracy and
served as “a warning to anyone that if they reveal the conspir-
acy that they will suffer the consequences. So it is a — it is a
way to continue concealing the conspiracy.”
As for unwarranted sentencing disparities, Mendoza com-
pared his sentence with those given to the Roque defend-
ants— Sanchez, Koon, and I. Diaz—and the Ochoa/Contreras
defendants—S. Ochoa, Contreras, Cesar Carrilo, Rafael Col-
lazo, and Edgar Valdelamar—to argue “he is less culpable
than most, if not all, of the defendants identified.” For its part,
the government addressed unwarranted disparities by stress-
ing Mendoza’s role as an “integral, trusted part” of the Roque
organization. At sentencing, when the government men-
tioned the need to avoid unwarranted disparities, Judge
Kendall cut in to say: “Right. We start first with mine.” Later,
Mendoza’s counsel also reiterated that “I do think the unwar-
ranted sentencing disparities is something we need to focus
on,” while listing the sentences received by S. Ochoa, Contre-
ras, and Ramirez.
Nos. 18-2538 et al. 13
When sentencing Mendoza, Judge Kendall mentioned the
diligence needed to track each sentence across multiple hear-
ings. One way she did that was to keep a chart: “I do my own
chart … on these, and I try to keep track of all of it. This is my
chart, not the one from the government. And I try to keep
track of all of the differences. It just expands and expands with
each sentencing.” Judge Kendall later referenced the issue of
“disparity in sentences” and that she looks for “respect for the
law” in considering that issue.
7. J. Cervantes
J. Cervantes, a courier, received a total sentence of 168
months’ imprisonment, based on his plea to the drug traffick-
ing conspiracy in Count One. During sentencing, Judge Ken-
dall found him responsible for 170 kilograms of cocaine and
10 kilograms of heroin. J. Cervantes’s 168-month sentence fell
at the bottom of his guidelines range of 168 to 210 months.
In his sentencing memorandum, J. Cervantes asserted
“[d]isparity is a major issue in this case.” Specifically, he made
a detailed comparison to his sister, A. Cervantes, (24 months
by Judge Kendall), and argued for a sentence closer to what
she received. The government disagreed and contended a
168-month sentence for J. Cervantes would “place him appro-
priately among his co-defendants,” and would “fit[] in with
his co-defendants.” At sentencing, J. Cervantes’s counsel also
made a detailed and lengthy comparative argument to A. Cer-
vantes’s sentence. But the government contrasted J. Cervan-
tes’s circumstances with those of the other Roque defendants,
and distinguished J. Cervantes from A. Cervantes by noting
“how unique her circumstances were, just how many mitigat-
ing factors that nobody else in this case had that led to a
24-month sentence.” Moreover, when comparing J. Cervantes
14 Nos. 18-2538 et al.
and “some of his other co-defendants,” the Government
noted that “[J. Cervantes] didn’t provide any cooperation.”
When sentencing J. Cervantes, Judge Kendall identified
the need to avoid unwarranted disparities under § 3553(a):
“So let me talk about the other defendants, because I’ve been
living this case for some time now.” Acknowledging she was
“going to focus on Angelica because thatʹs what [J. Cervan-
tes’s counsel] did[,]” Judge Kendall noted the difference in
criminal history and that A. Cervantes received the Sentenc-
ing Guidelines safety valve, among other differences.
Two issues also arose concerning J. Cervantes’s guilty
plea. First, in his plea agreement, J. Cervantes admitted to
traveling to Union Station on “at least seven separate occa-
sions” to pick up drug packages, and also to traveling to Un-
ion Station “with Angelica [Cervantes] on multiple other oc-
casions” to do the same. His plea agreement originally stated,
however, that J. Cervantes traveled to Union Station with A.
Cervantes on “at least eight other occasions.” The phrasing
changed to “multiple other occasions” only when J. Cervantes
corrected it at his change of plea hearing. Second, despite that
change, J. Cervantes’s plea agreement still stated that J.
Cervantes, “either alone or in the company of Angelica [Cer-
vantes], collected and transported at 15 packages [sic] that he
knew contained narcotics.” Ultimately, Judge Kendall neither
mentioned the 15-package number nor engaged with the spe-
cifics of the trips to Union Station when imposing J. Cervan-
tes’s sentence.
B
For comparison, we list the sentences that Judge Kendall
imposed on those Roque defendants who did not appeal—
Koon, A. Cervantes, and I. Diaz. Largely because they acted
Nos. 18-2538 et al. 15
as couriers, these defendants each received shorter sentences
than the seven primary Roque defendants.
Roque DTO Guidelines Range Sentence
Koon 108 to 135 months 108 months
A. Cervantes 51 to 63 months 24 months
I. Diaz 135 to 168 months 108 months
We also list the sentences of the Ochoa/Contreras defend-
ants—Valdelamar, Collazo, S. Ochoa, Carrilo, and Contre-
ras—imposed by Judge Gettleman, because they are relevant
to the Roque defendants’ sentencing disparity arguments. As
with Koon, A. Cervantes, and I. Diaz, these Ochoa/Contreras
defendants received significantly lower sentences than the
seven primary Roque defendants.
Ochoa/Contreras
Guidelines Range Sentence
DTO
Valdelamar 87 to 108 months 60 months
Collazo 235 to 293 months 90 months
S. Ochoa 262 to 327 months 180 months
Carrilo 108 to 135 months 65 months
Contreras 325 to 405 months 140 months
16 Nos. 18-2538 et al.
III
With this background, the seven Roque defendants raise
many of the same arguments: (A) five contend Judge Kendall
failed to correctly interpret the need to avoid unwarranted
sentencing disparities under 18 U.S.C. § 3553(a)(6), and six
(the same five, plus another) assert a failure to consider this
principal argument in mitigation; (B) two of those seven de-
fendants question the application of the Sentencing
Guidelines; and (C) two different defendants contest their su-
pervised release conditions.
A
Several of the Roque defendants contest Judge Kendall’s
legal interpretation of § 3553(a)(6) and question whether she
adequately addressed this principal mitigation argument,
both allegedly procedural errors. We review these claims de
novo. United States v. Durham, 766 F.3d 672, 685 (7th Cir. 2014);
United States v. Davis, 764 F.3d 690, 694 (7th Cir. 2014).
Section 3553(a)(6) mandates that, when imposing a sen-
tence, the district court must consider “the need to avoid un-
warranted sentence disparities among defendants with simi-
lar records who have been found guilty of similar conduct.”
Of course, this “does not require that defendants in a single
case be sentenced to identical prison terms.” United States v.
Statham, 581 F.3d 548, 556 (7th Cir. 2009). Rather, § 3553(a)(6)
provides for discretionary comparison and “applies to de-
fendants ‘with similar records who have been found guilty of
similar conduct.’” United States v. Durham, 645 F.3d 883, 897
(7th Cir. 2011) (quoting 18 U.S.C. § 3553(a)(6)). But “[a] district
court is entitled, if it wishes, to apply the rule against unwar-
ranted disparities to co-defendants sentences.” United States
v. Solomon, 892 F.3d 273, 278 (7th Cir. 2018). Further, our case
Nos. 18-2538 et al. 17
law neither precludes nor requires comparison to a parallel
conspiracy—whether before the same or different judges—
when considering unwarranted disparities under § 3553(a)(6).
See Durham, 645 F.3d at 897.
Misinterpreting § 3553(a)(6). Five defendants—E. Roque,
P. Diaz, R. Roque, Mendoza, and J. Cervantes—argue Judge
Kendall erroneously thought she could not consider the par-
allel Ochoa/Contreras sentences under § 3553(a)(6). They each
adopt the brief of E. Roque, who cites United States v. Reyes-
Medina to assert that § 3553(a)(6) commands this considera-
tion. 683 F.3d 837, 841 (7th Cir. 2012) According to these five
defendants, Judge Kendall’s sentencing comments reveal that
she believed herself legally barred from considering sentences
such as those by Judge Gettleman of the Ochoa/Contreras
defendants. These defendants contend this was error. The
government responds that Judge Kendall did not expressly
misinterpret § 3553(a)(6), so she could not have procedurally
erred.
To ascertain whether a district court misapprehended its
discretion under § 3553(a)(6), we must consider the context of
its statements. Reyes-Medina, 683 F.3d at 841 (“[I]t is clear from
the context of his statement that the judge was simply giving
an example of an instance when the factor would be especially
relevant.”). So viewed, such interpretive error presents itself
plainly from the record; it must leap off the page. Compare
United States v. Prado, 743 F.3d 248, 252 (7th Cir. 2014) (“The
district court’s statements at the sentencing hearing indicate
that the court thought it lacked the discretion to consider dis-
parities among defendants as a matter of law.”), with Durham,
766 F.3d at 686 (“Considered in context, the judge’s remarks
do not suggest that she thought she was legally barred from
18 Nos. 18-2538 et al.
considering the other sentences but, rather, that she was exer-
cising her discretion not to consider them in light of the partic-
ularly severe consequences of the fraud in this case.”). Our
case law provides that only a “clear statement” of misinter-
pretation will suffice to show that a district court misappre-
hended its discretionary authority under § 3553(a)(6).
So Judge Kendall committed interpretive error here only
if she explicitly stated that § 3553(a) barred her consideration
of the sentences given to the Ochoa/Contreras defendants by
Judge Gettleman.4
Cunningham Error. Six defendants—E. Roque, P. Diaz, R.
Roque, Mendoza, J. Cervantes, and Ramirez—also contend
the district court failed to adequately address the merits of
their unwarranted sentencing disparities argument. They ar-
gue Judge Kendall did not address this principal mitigation
argument in enough detail at each sentencing and therefore
contravened United States v. Cunningham, 429 F.3d 673, 679
(7th Cir. 2005) (holding that a district court must address a
criminal defendant’s “principal” arguments in mitigation un-
less such arguments are “so weak as not to merit discussion”).
This requirement flows from Rita v. United States, which held
that “[t]he sentencing judge should set forth enough to satisfy
the appellate court that he has considered the parties’ argu-
ments and has a reasoned basis for exercising his own legal
decisionmaking authority.” 551 U.S. 338, 356 (2005). The gov-
ernment disagrees and maintains that, in any event, the
4
The government contends each defendant has forfeited this argu-
ment to varying degrees. We need not resolve the question of forfeiture
because Judge Kendall did not misinterpret § 3553(a)(6).
Nos. 18-2538 et al. 19
below-or-within guidelines range sentences that these six de-
fendants received foreclose any Cunningham challenges.
Cunningham does not require artificial thoroughness. A
district court “need not discuss each section 3553(a) factor at
sentencing and need not respond to every pithy argument
that a defendant raises, just the ‘principal’ ones.” United States
v. Villegas-Miranda, 579 F.3d 798, 801 (7th Cir. 2009). Although
“[a] rote statement that the judge considered all relevant fac-
tors will not always suffice[,]” Cunningham, 429 F.3d at 679,
“[s]o long as the record gives us confidence that the court
meaningfully considered the defendant’s mitigation argu-
ments, ‘even if implicitly and imprecisely,’ that is enough.”
United States v. Jones, 798 F.3d 613, 618 (7th Cir. 2015) (quoting
United States v. Diekemper, 604 F.3d 345, 355 (7th Cir. 2010)).
Evaluating a Cunningham challenge requires a close look
at context. “[W]e try to take careful note of context and the
practical realities of a sentencing hearing.” United States v.
Gary, 613 F.3d 706, 709 (7th Cir. 2010). That means “we regu-
larly affirm sentences where the district judge does not explic-
itly mention each mitigation argument raised by the defend-
ant.” United States v. Paige, 611 F.3d 397, 398 (7th Cir. 2010).
All in all, district courts “need not belabor the obvious.” Gary,
613 F.3d at 709.
Cunningham and § 3553(a)(6). The Sentencing Guidelines
play a pivotal role when Cunningham error intertwines with
consideration of unwarranted sentencing disparities. This is
because “the Sentencing Guidelines are themselves an anti-
disparity formula.” United States v. Blagojevich, 854 F.3d 918,
921 (7th Cir. 2017). Generally, when a district court “correctly
calculated and carefully reviewed the Guidelines range, [the
district court] necessarily gave significant weight and
20 Nos. 18-2538 et al.
consideration to the need to avoid unwarranted disparities.”
Gall v. United States, 552 U.S. 38, 54 (2007); cf. Kimbrough v.
United States, 552 U.S. 85, 109 (2007) (noting that a district
court judge is “‘in a superior position to find facts and judge
their import under § 3553(a)’ in each particular case”) (quot-
ing Gall, 552 U.S. at 51)). And our case law makes clear that
“[s]entencing disparities are at their ebb when the Guidelines
are followed, for the ranges are themselves designed to treat
similar offenders similarly.” United States v. Boscarino, 437
F.3d 634, 638 (7th Cir. 2006) (decided pre-Gall). We have even
stated that “[c]hallenging a within-range sentence as dispar-
ate is a ‘pointless’ exercise.” United States v. Chapman, 694 F.3d
908, 916 (7th Cir. 2012) (per curiam).
Put another way, “[t]he best way to curtail ‘unwarranted’
disparities is to follow the Guidelines, which are designed to
treat similar offenses and offenders similarly.” United States v.
Bartlett, 567 F.3d 901, 908 (7th Cir. 2009). We nevertheless re-
main “open in all cases to an argument that a defendant’s sen-
tence is unreasonable because of a disparity with the sentence
of a co-defendant, but such an argument will have more force
when a judge departs from a correctly calculated Guidelines
range to impose the sentence.” Statham, 581 F.3d at 556.5
This is all to say that “[a] sentence within a Guideline
range ‘necessarily’ complies with § 3553(a)(6).” Bartlett, 567
5 Our recent decision in United States v. Jones does not alter this doctri-
nal framework. 962 F.3d 956 (7th Cir. 2020). Jones concerned a district
court’s failure to adequately explain its deviation from the Sentencing
Guidelines. Id. at 960. (“A significant deviation, like this one, requires an
especially compelling justification.”). In these consolidated cases, no such
deviations occurred; in fact, Judge Kendall gave sentences to each defend-
ant within or below the guidelines.
Nos. 18-2538 et al. 21
F.3d at 908 (quoting Gall, 552 U.S. at 54). In Bartlett, we recog-
nized this principle in the wake of Rita, Gall, and Kimbrough,
and we have reaffirmed it since. Blagojevich, 854 F.3d at 921
(“[T]o base a sentence on a properly determined Guidelines
range is to give adequate consideration to the relation be-
tween the defendant’s sentence and those of other per-
son … .”); United States v. Thompson, 864 F.3d 837, 841 (7th Cir.
2017) (“In any event, the court imposed a within-guidelines
sentence, thereby neutralizing the risk of unwarranted sen-
tencing disparities.”); United States v. Nania, 724 F.3d 824, 840
(7th Cir. 2013) (“In fact, we give the Sentencing Commission’s
views on these issues such credit that we have stated a within-
Guidelines sentence necessarily takes into account unwar-
ranted disparities.”); United States v. Annoreno, 713 F.3d 352,
359 (7th Cir. 2013) (“Sentencing within the range advised by
the sentencing guidelines accounts for concerns of unwar-
ranted sentencing disparities … .”). As a result, an argument
that a district court did not adequately consider unwarranted
sentencing disparities when giving a within-guidelines sen-
tence may “therefore be passed over in silence.” United States
v. Martin, 718 F.3d 684, 688 (7th Cir. 2013) (citing Cunningham,
429 F.3d at 678). In those cases, a district court need not “say
a word about § 3553(a)(6)’s application … to satisfy the pro-
cedural requirement that he give that factor ‘meaningful con-
sideration.’” Reyes-Medina, 683 F.3d at 841.
So Judge Kendall contravened Cunningham only if, when
viewing her sentencing remarks in context, she improperly
calculated the Sentencing Guidelines and therefore failed to
adequately address each defendant’s unwarranted sentenc-
ing disparity argument.
22 Nos. 18-2538 et al.
1. E. Roque
In E. Roque’s sentencing, there was no interpretive error
under § 3553(a)(6) or Cunningham error. Judge Kendall did
not clearly state she believed herself barred from considering
the sentences Judge Gettleman gave to the Ochoa/Contreras
defendants. Given this series of complex cases, when Judge
Kendall asked whether she sentenced S. Ochoa and Navarro-
Galvan, that showed factual clarification, not legal misappre-
hension. Although Judge Kendall did not address S. Ochoa’s
and Navarro-Galvan’s sentences, E. Roque received a below-
guidelines sentence of 420 months’ imprisonment. This
sentence necessarily complies with the need to avoid unwar-
ranted sentencing disparities under § 3553(a)(6), Bartlett, 567
F.3d at 908, and necessarily considers that argument under
Cunningham. Martin, 718 F.3d at 688; Reyes-Medina, 683 F.3d at
841.
2. P. Diaz
P. Diaz’s sentencing record shows much the same: no
§ 3553(a)(6) misinterpretation and no Cunningham error.
Judge Kendall did not clearly state that she misapprehended
her comparative authority under § 3553(a)(6). At most, her
question to the Government concerning the sentence she gave
E. Roque—“And I just gave Mr. Roque 300 and 120; is that
correct? 420 all together?”—is another wise clarification, not a
definitive interpretation, let alone an erroneous one. That ex-
change came in the context of the government’s rejection of
any comparison to S. Ochoa’s sentence by Judge Gettleman,
so Judge Kendall implicitly considered that as well. In arriv-
ing at P. Diaz’s sentence under § 3553(a), Judge Kendall spe-
cifically referenced the need to look at the “roles of the differ-
ent conspirators here” to make “enough divergence” with the
Nos. 18-2538 et al. 23
lengthier sentence imposed upon E. Roque. Such a statement
wipes away any Cunningham argument, especially when P.
Diaz received a below-guidelines sentence of 250 months’ im-
prisonment. Martin, 718 F.3d at 688; Reyes-Medina, 683 F.3d at
841; Bartlett, 567 F.3d at 908.
3. R. Roque
R. Roque cannot claim misinterpretation of § 3553(a)(6) or
Cunningham error, either. It is true that R. Roque’s counsel
compared his sentencing situation to that of both other Roque
defendants (such as Sanchez) and Ochoa/Contreras defend-
ants (such as Contreras). But again, we see no misapprehen-
sion of § 3553(a)(6) by Judge Kendall. Judge Gettleman’s
sentences were mentioned at R. Roque’s sentencing, particu-
larly in the context of R. Roque’s possible minor role reduc-
tion. In rejecting that reduction, Judge Kendall necessarily
considered those sentences and did not say she could not con-
sider them. As for Cunningham error, Judge Kendall may not
have specifically connected R. Roque’s sentence to those of the
Ochoa/Contreras defendants, although she did note R.
Roque’s “integral role” within the Roque organization. Even
still, R. Roque’s within-guidelines sentence of 210 months’ im-
prisonment insulates his sentence from a Cunningham chal-
lenge. Martin, 718 F.3d at 688; Reyes-Medina, 683 F.3d at 841;
Bartlett, 567 F.3d at 908.
4. Mendoza
Mendoza’s § 3553(a)(6) misinterpretation and Cunning-
ham arguments also fail. Prompted by the government’s ref-
erence to avoiding unwarranted sentencing disparities, Judge
Kendall remarked: “We start first with mine.” That statement
does not show misinterpretation but means that Judge
Kendall began by considering the Roque sentences, and then
24 Nos. 18-2538 et al.
she could, if she desired, consider the Ochoa/Contreras sen-
tences. Before this “first” exchange, the government referred
to Mendoza’s sentencing memorandum addressing the
Ochoa/Contreras sentences. And immediately after that
“first” exchange, the district court heard Mendoza’s argu-
ments considering the Ochoa/Contreras sentences. This se-
quence does not evidence a § 3553(a)(6) misinterpretation.
Judge Kendall’s diligence in keeping a chart of the sentences
of the various defendants forecloses a Cunningham claim as
well. She stated that “to keep track of all the differences” be-
tween sentences, she kept her own chart and “not the one
from the government.” Even if Judge Kendall’s chart did not
include the Ochoa/Contreras defendants, Mendoza received
a within-guidelines sentence of 150 months’ imprisonment
that survives any Cunningham claim. Martin, 718 F.3d at 688;
Reyes-Medina, 683 F.3d at 841; Bartlett, 567 F.3d at 908.
5. J. Cervantes
J. Cervantes cannot claim that Judge Kendall misinter-
preted § 3553(a)(6) or committed Cunningham error. At sen-
tencing, J. Cervantes’s counsel mentioned only the sentence
given to A. Cervantes by Judge Kendall, and not the sentences
given to Ochoa/Contreras defendants by Judge Gettleman.
Again, there is no interpretive error here because Judge
Kendall could not have thought herself barred from consider-
ing Judge Gettleman’s sentences that went unmentioned. Nor
is there Cunningham error. Judge Kendall expressly stated she
wanted to talk about the other Roque defendants “because
[she had] been living in this case for some time now.” Then,
Judge Kendall acknowledged she was “going to focus on An-
gelica because that’s what [J. Cervantes’s counsel] did” and
then she distinguished the cases of the two siblings. J.
Nos. 18-2538 et al. 25
Cervantes’s within-guidelines sentence of 168-months’ im-
prisonment further bars any Cunningham challenge. Martin,
718 F.3d at 688; Reyes-Medina, 683 F.3d at 841; Bartlett, 567 F.3d
at 908.
6. Ramirez
Ramirez asserts only a Cunningham error, but that fails
too. During sentencing, Judge Kendall stated “we need to al-
ways look at the co-defendants and the relationship between
them so that I’m accurately sentencing him for his role in the
offense as well.” And when crafting Ramirez’s sentence under
§ 3553(a), Judge Kendall noted she had “to look at the other
individuals that [Ramirez was] sentenced with, and they each
have greater or a lesser sentence.” Sanchez was the defendant
“closest” to Ramirez, according to Judge Kendall. Finally, alt-
hough Judge Kendall may not have mentioned the sentences
of the Ochoa/Contreras defendants by name, this makes no
difference because Ramirez received a within-guidelines sen-
tence of 188 months’ imprisonment. Martin, 718 F.3d at 688;
Reyes-Medina, 683 F.3d at 841; Bartlett, 567 F.3d at 908.
In sum, no Roque organization defendant has demon-
strated that Judge Kendall committed either interpretive error
under § 3553(a)(6) or Cunningham error.
B
Two defendants—Mendoza and J. Cervantes—challenge
their guidelines calculations. Mendoza received a two-level
enhancement for possession of a firearm in connection with a
drug trafficking offense under U.S.S.G. § 2D1.1(b)(1), a find-
ing he contends the evidence does not support. Likewise, J.
Cervantes asserts he should have received a two-level minor
role reduction under U.S.S.G. § 3B1.2(b), and that Judge
26 Nos. 18-2538 et al.
Kendall relied upon inaccurate information in sentencing.
Both guidelines claims concern factual assessments so we re-
view those for clear error, United States v. Thurman, 889 F.3d
356, 371 (7th Cir. 2018); United States v. Tartareanu, 884 F.3d
741, 745 (7th Cir. 2018), and an inaccurate information claim
constitutes procedural error so we review that claim de novo.
Jones, 962 F.3d at 960.
1. Mendoza
Mendoza’s § 2D1.1(b)(1) challenge easily fails. Under
§ 2D1.1(b)(1), a two-level enhancement applies “[i]f a danger-
ous weapon (including a firearm) was possessed.” Applica-
tion Note 11 of § 2D1.1(b)(1) states “[t]he enhancement should
be applied if the weapon was present, unless it is clearly im-
probable that the weapon was connected with the offense.”
This imposes a “twofold burden.” Thurman, 889 F.3d at 372.
“First, the Government must prove by a preponderance of the
evidence that the defendant possessed a weapon either actu-
ally or constructively, meaning he ‘had the power and the
intention to exercise dominion or control of the firearm.” Id.
(internal quotation marks omitted). Second, “[i]f the Govern-
ment satisfies this burden, then the defendant must show that
it is ‘clearly improbable [that] he possessed the weapon in
connection with the drug offense.’” Id. (quoting United States
v. Morris, 836 F.3d 868, 872 (7th Cir. 2016)). Here, the govern-
ment proved possession of a firearm without difficulty. Men-
doza sent the Instagram messages during the conspiracy and
they not only depicted an automatic rifle, but also warned of
a “rain of bullet[s] for the snitches.” Mendoza’s assertion that
this possession was not connected to the offense—because
warning of retribution against informants is “a comment
that’s made amongst friends”—is baseless. As Judge Kendall
Nos. 18-2538 et al. 27
noted, Mendoza’s message served as a “warning to anyone
that if they reveal the conspiracy that they will suffer the con-
sequences.” Mendoza has not shown clear error on this point.
2. J. Cervantes
J. Cervantes’s role as a courier does not automatically en-
title him to a minor role reduction under U.S.S.G. § 3B1.2(b).
Rather, that provision provides for a two-level decrease “[i]f
the defendant was a minor participant in any criminal activ-
ity.” U.S.S.G. § 3B1.2(b). Not every courier is a minor partici-
pant, and not every minor participant is a courier. United
States v. Rodriguez-Cardenas, 362 F.3d 958, 960 (7th Cir. 2004);
see U.S.S.G. § 3B1.2(b)(1), cmt. n.3(A) (“[A] defendant who is
convicted of a drug trafficking offense, whose participation in
that offense was limited to transporting or storing drugs and
who is accountable under § 1B1.3 only for the quantity of
drugs the defendant personally transported or stored may re-
ceive an adjustment under this guideline.”).
Section 3B1.2(b)’s application instead turns on culpabil-
ity. Under Application Note 3, § 3B1.2(b) applies to defend-
ants “who play[] a part in committing the offense that makes
[them] substantially less culpable than the average participant
in the criminal activity.” This means the relevant comparison
is “the defendant’s role to that of an average member of the
conspiracy, not to that of the leaders.” United States v.
Guzman-Ramirez, 949 F.3d 1034, 1037 (7th Cir. 2020). A “non-
exhaustive list of factors” plays a role in this determination.
U.S.S.G. § 3B1.2, cmt. n.3(C).6 At bottom, the defendant bears
6 Those factors include:
(i) the degree to which the defendant understood the scope
and structure of the criminal activity;
28 Nos. 18-2538 et al.
the burden to prove that the enhancement should apply by a
preponderance of the evidence. United States v. Sandoval-Ve-
lazco, 736 F.3d 1104, 1107 (7th Cir. 2013).
J. Cervantes has forfeited any claim to a minor role reduc-
tion, even if he was substantially less culpable than the
average Roque defendant. Only obliquely (if at all) did J. Cer-
vantes reference the reduction during his § 3553(a) colloquy,
and he failed to raise the topic when, at the beginning of the
sentencing hearing, the district court calculated his guidelines
range. The closest J. Cervantes’s counsel came to advocating
for the reduction at sentencing is when he acknowledged that
J. Cervantes did not receive it: “[A. Cervantes] had a minor
role, which we were not able to acquire for Juan Cervantes,
even though they had essentially the same role.” Nothing in
J. Cervantes’s objections to the presentence investigation re-
port or in the sentencing transcript reveals this request for a
minor role reduction. As we have stated, “defense counsel
should have articulated this objection as a challenge to the
(ii) the degree to which the defendant participated in plan-
ning or organizing the criminal activity;
(iii) the degree to which the defendant exercised decision-
making authority or influenced the exercise of decision-mak-
ing authority;
(iv) the nature and extent of the defendantʹs participation in
the commission of the criminal activity, including the acts
the defendant performed and the responsibility and discre-
tion the defendant had in performing those acts;
(v) the degree to which the defendant stood to benefit from
the criminal activity.
U.S.S.G. § 3B1.2, cmt. n.3(C).
Nos. 18-2538 et al. 29
Guidelines calculation, rather than advancing it to support a
downward variance under § 3553(a).” United States v. Butler,
777 F.3d 382, 387 (7th Cir. 2015). This forfeiture therefore trig-
gers plain error review. United States v. Flores, 929 F.3d 443,
447 (7th Cir. 2019).
Under any standard, Judge Kendall did not err in han-
dling J. Cervantes’s minor role reduction. Under § 3B1.2(b).
“[T]he sentencing court is in the best position to determine the
role that a defendant had in the criminal activity.” Sandoval-
Velazco, 736 F.3d at 1107. This makes things difficult for J. Cer-
vantes, especially when § 3B1.2(b)’s “application is fact spe-
cific, based on the district court’s evaluation of ‘[defendant’s]
role in context of the other participants in the scheme.’” Guz-
man-Ramirez, 949 F.3d at 1037 (quoting United States v. Leisku-
nas, 656 F.3d 732, 739 (7th Cir. 2011)). Further foreclosing J.
Cervantes’s claim is the amount of the drugs attributed to
him: 170 kilograms of cocaine and 10 kilograms of heroin. See
Sandoval-Velazco, 736 F.3d at 1109 (“While the court cannot
base its denial of a reduction solely on the quantity of drugs
involved in a case, it can give effect to a defendant’s role in
connection with those drugs.”). Besides couriering drugs, J.
Cervantes recruited members into the conspiracy, unloaded
narcotics at stash houses, and even blocked law enforcement
from apprehending A. Cervantes. These facts confirm Judge
Kendall’s finding that J. Cervantes was not “substantially less
culpable than the average participant in the criminal activity.”
U.S.S.G. § 3B1.2(b)); see Sandoval-Velazco, 736 F.3d at 1109 (re-
jecting minor role adjustment for courier with greater-than-
average involvement).
J. Cervantes also asserts he received his sentence based on
two erroneous pieces of information. The first is that when his
30 Nos. 18-2538 et al.
plea agreement changed the frequency of his trips to Union
Station from “at least eight other occasions” to “multiple oc-
casions[,]” it rendered the following sentence—“[J.] Cervan-
tes, either alone or in the company of Angelica [Cervantes],
collected and transported at 15 packages [sic] that he knew
contained narcotics”—erroneous. The second is that in impos-
ing J. Cervantes’s sentence, Judge Kendall considered that A.
Cervantes cooperated, when she had not. Both assertions fail
for similar reasons.
By stipulating to those plea agreement facts, J. Cervantes
waived review of any inaccuracy as to the frequency of trips
to Union Station: “A defendant who stipulates to facts as part
of a written plea agreement also waives challenges to the dis-
trict court’s reliance on those facts.” United States v. Scott, 657
F.3d 639, 640 (7th Cir. 2011) (per curiam); see United States v.
Walsh, 723 F.3d 802, 807 (7th Cir. 2013). Even assuming J. Cer-
vantes preserved this alleged error, the sentencing record
does not show that Judge Kendall relied on the contested in-
formation at sentencing. Although “[a] convicted defendant
has a due process right to be sentenced based on accurate in-
formation,” United States v. Propst, 959 F.3d 298, 304 (7th Cir.
2020), to succeed on attacking a sentence that defendant
“must show that inaccurate information was before the court
and that the court relied upon it.” United States v. Pennington,
908 F.3d 234, 239 (7th Cir. 2018). Judge Kendall’s comments
concerning the J. Cervantes’s drug weight do not demonstrate
specific engagement with, much less actual reliance upon, the
frequency of J. Cervantes’s trips to Union Station. United
States v. Chatman, 805 F.3d 840, 844 (7th Cir. 2015) (“A court
demonstrates ‘actual reliance on misinformation’ when sen-
tencing if ‘the court gives explicit attention to it, founds its
sentence at least in part on it, or gives specific consideration
Nos. 18-2538 et al. 31
to the misinformation before imposing sentence.’” (quoting
Promotor v. Pollard, 628 F.3d 878, 888 (7th Cir. 2010))). This
claim fails as waived or on the merits.
J. Cervantes also does not succeed on the claim that
Judge Kendall relied upon A. Cervantes’s cooperation. Be-
cause he did not object to the government’s supposedly incor-
rect characterization of A. Cervantes’s safety valve proffer as
cooperation, J. Cervantes has forfeited this argument. Propst,
959 F.3d at 302–04. But whether under plain error or de novo
review, J. Cervantes still fails to show that the government
presented inaccurate information for Judge Kendall to rely
upon. Unsurprisingly, “[c]ontext plays a crucial role in evalu-
ating the degree of influence that an unsupported fact has had
on a district courtʹs sentencing decision.” United States v.
Corona-Gonzalez, 628 F.3d 336, 342 (7th Cir. 2010). The govern-
ment did not expressly claim that A. Cervantes cooperated
and did not characterize A. Cervantes’s safety valve proffer as
cooperation. The government did note that “[b]ut on the other
hand, [J. Cervantes] didn’t provide any cooperation[,]” in the
context of offering a comparison between J. Cervantes and
“some of his other co-defendants.” J. Cervantes cannot juxta-
pose these remarks against Judge Kendall’s statements
concerning A. Cervantes’s behavior to secure relief. This is es-
pecially so when Judge Kendall accurately noted that A. Cer-
vantes “came in on a safety valve.” Regardless, referring to a
safety valve proffer as cooperation may have indeed been ac-
curate. E.g., United States v. Draheim, 958 F.3d 651, 656 (7th Cir.
2020).
To sum up, Mendoza and J. Cervantes received properly
calculated guidelines ranges from Judge Kendall, who did not
rely on inaccurate information in sentencing J. Cervantes.
32 Nos. 18-2538 et al.
C
Two defendants—Sanchez and R. Roque—challenge
their supervised release conditions. Both claim Judge
Kendall’s oral pronouncements of their sentences contradict
their written judgments of conviction. We review de novo
these discrepancy claims. United States v. Fisher, 943 F.3d 809,
816 (7th Cir. 2019).
As a rule, “where the oral pronouncement of the court
conflicts with the court’s later written order, the oral pro-
nouncement controls.” United States v. Orozco-Sanchez, 814
F.3d 844, 847 (7th Cir. 2016). That means “[i]f an inconsistency
exists between an unambiguous oral sentence and the written
judgment, the oral sentence controls and the written judg-
ment should be amended to reflect the oral sentence.” Fisher,
943 F.3d at 816. “But not all differences between the written
and oral sentences amount to inconsistencies.” Id. Rather, “[i]f
the oral sentence is ambiguous or broad, we may use the writ-
ten judgment as clarification, and the written judgment need
not be amended.” Id.; see United States v. Bonanno, 146 F.3d 502,
511 (7th Cir. 1998). We typically remand if any irreconcilable
discrepancies exist, but if “we are confident that we can tell
what the district court intended,” then we may “simply cor-
rect the judgment ourselves.” United States v. Smith, 906 F.3d
645, 651 (7th Cir. 2018).
1. Sanchez
Sanchez’s two alleged inconsistencies concern the no-
contact condition and the drug treatment condition. The no-
contact condition orally imposed by Judge Kendall referred
to a ban on communicating with Sanchez’s “co-defendants in
this activity.” Sanchez’s written judgment of conviction, how-
ever, bars him from contacting two Roque defendants—Koon
Nos. 18-2538 et al. 33
and Ochoa-Canela—who pleaded guilty before the govern-
ment charged Sanchez in the fourth superseding indictment.
Yet the government charged Koon and Ochoa-Canela in its
three previous indictments and previously referred to Koon
as Sanchez’s codefendant. So at most, Judge Kendall’s oral
pronouncement is ambiguous. Given this procedural history,
Sanchez’s written judgment merely clarifies that Judge
Kendall meant to include all codefendants, past and present.
See Fisher, 943 F.3d at 816; Bonanno, 146 F.3d at 512.
Concerning Sanchez’s drug treatment condition, no con-
flict exists between Judge Kendall’s oral pronouncement and
the written judgment of conviction. During sentencing, Judge
Kendall recommended a drug treatment program after “eval-
uation by the probation officer” and Sanchez’s written judg-
ment states that he “shall participate, at the direction of a pro-
bation officer, in a substance abuse treatment program, which
may include urine testing up to a maximum of 104 tests per
year.” Taken together, the treatment recommendation and
testing regimen conditions fit rather than conflict. If Sanchez’s
drug treatment program requires testing, the 104-test figure
in Sanchez’s written judgment is just a cap on the number of
urine tests that Sanchez must complete as part of that treat-
ment program. United States v. Downey, 908 F.3d 205, 207 (7th
Cir. 2018). We see no conflict here.
2. R. Roque
For his part R. Roque cites three alleged inconsistencies
between Judge Kendall’s oral pronouncement and his written
judgment of conviction. First, the oral pronouncement pro-
hibited R. Roque from using alcohol only until he graduated
from the drug treatment program, although the written judg-
ment’s alcohol prohibition lasts for the entire supervised
34 Nos. 18-2538 et al.
release period. Because the government concedes error on this
condition and Judge Kendall’s oral pronouncement indicates
her intent, we order that the written judgment be amended to
prohibit R. Roque from consuming alcohol until he completes
the drug treatment program. See Smith, 906 F.3d at 651.
Second, Judge Kendall orally required R. Roque to permit
probation visits “at any reasonable time[,]” but the written
judgment contains no such language. The government again
concedes error, and Judge Kendall’s oral pronouncement re-
veals her intent, so we order that the written judgment be
amended to permit probation visits “at any reasonable time.”
See id. And third, Judge Kendall orally recommended an al-
ternative to the community service condition, but the terms of
that recommendation do not appear in R. Roque’s written
judgment. No conflict exists between the two. Judge Kendall
directed her comments not at R. Roque, but at the probation
officer, when she stated: “[I]f, after 60 days of supervision, he
is unemployed, and then — then you’re required to file a no-
tice with the Court, and we’ll bring him back in and have a
discussion as to what is the best position for him to be in at
that time.” If anything, this statement makes a request of the
probation officer, and therefore it cannot constitute a discrep-
ancy for a condition imposed on R. Roque.
IV
The seven Roque defendants fail to demonstrate any er-
rors in their sentences. Judge Kendall properly interpreted
and considered unwarranted sentencing disparities under
§ 3553(a)(6), correctly calculated the Sentencing Guidelines,
and, with one exception, appropriately imposed supervised
release conditions. We thus ORDER that R. Roque’s alcohol
consumption condition, as stated in discretionary condition 7
Nos. 18-2538 et al. 35
of his written judgment, be amended to prohibit consumption
of alcohol until completion of his drug treatment program.
We also ORDER that R. Roque’s probation visit condition, as
stated in discretionary condition 16 of his written judgment,
be amended to permit probation officer visits “at any reason-
able time.” We AFFIRM the defendants’ sentences in every
other aspect.