United States v. Edwin Sanchez ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3529
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
E DWIN S ANCHEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10-CR-131—Charles R. Norgle, Judge.
A RGUED S EPTEMBER 25, 2012—D ECIDED M ARCH 6, 2013
Before K ANNE, T INDER, and H AMILTON, Circuit Judges.
K ANNE, Circuit Judge. After pleading guilty to partic-
ipating in a conspiracy to distribute cocaine, Edwin
Sanchez was sentenced to 262 months of incarceration
and five years of supervised release. His punishment
took into account a new sentencing enhancement for a
defendant who “maintained a premises for the pur-
pose of manufacturing or distributing a controlled sub-
stance.” U.S.S.G. § 2D1.1(b)(12). Sanchez now appeals
his sentence. He contends that applying the enhance-
2 No. 11-3529
ment to him violated the ex post facto clause of the Constitu-
tion or was otherwise an incorrect application of the
law. He also challenges his sentence on various pro-
cedural and substantive grounds. We do not find any
error, however, and therefore affirm Sanchez’s sentence.
I. B ACKGROUND
In mid-2007, Edwin Sanchez began participating in a
large drug conspiracy. He linked up with Carlos Gascar-
Corona, a drug distributor with ties to the Mexican drug
cartel La Familia Michoacana. Gascar-Corona would
provide Sanchez with cocaine at no cost but under the
proviso that Sanchez would turn over the money after
the drugs sold. Given this arrangement, Gascar-Corona
needed confidence in Sanchez. So, he initially provided
Sanchez with two or three kilograms of cocaine at a
time. Once Sanchez proved he could sell that quantity,
the size of the shipments increased. Gascar-Corona
started giving Sanchez twenty to thirty kilograms at
a time. Sometimes, he provided as much as forty kilo-
grams. Sanchez sold cocaine for Gascar-Corona until
June or July 2009. During that approximately two-year
period, Gascar-Corona sold nearly $2.5 million worth
of drugs, and Sanchez was his largest wholesaler.
Throughout this time, Sanchez lived in a rented
home with his girlfriend, their two children, his aunt,
his grandmother, and his grandmother’s boyfriend.
Notably, Sanchez used this residence in furtherance of the
conspiracy. Gascar-Corona would sometimes meet other
wholesalers at Sanchez’s home in order to distribute
No. 11-3529 3
drugs to those individuals. More importantly, as the
Presentence Investigation Report (“PSR”) stated, Sanchez
“would receive the supply of drugs directly at his garage
and payment would be picked up from the garage at a
later date.” (PSR at 4.) He would also “hide the drugs
in the attic in order to keep . . . [other people] . . . from
discovering what he was doing.” (Def.’s Version of the
Offense at 3.) Sanchez, however, “kept narcotics there
only as long as he had to, quickly transferring them
from the premises.” (Id.)
By August 2009, the Drug Enforcement Agency had
caught on. They arrested Sanchez, but his girlfriend’s
father posted bail a month later. Gascar-Corona was
also arrested. While waiting for the government to bring
charges, both Sanchez and Gascar-Corona became infor-
mants. Sanchez wore a wire and provided other informa-
tion, but his tips did not lead to any new arrests, nor
did they materially advance existing investigations.
Gascar-Corona’s information, in contrast, led to the
arrest of a high-ranking drug-dealer in Mexico, whom
the Mexican government later agreed to extradite to
the United States.
In April 2010, a grand jury indicted Sanchez for con-
spiring to possess, with intent to distribute, more than
five kilograms of a cocaine mixture, in violation of 21
U.S.C. §§ 841 and 846. Sanchez pled guilty on April 12,
2011. He did not sign a written plea agreement.
The PSR recommended a total offense level of thirty-
seven. This recommendation included a two-point
increase for a defendant who “maintained a premises for
4 No. 11-3529
the purpose of manufacturing or distributing a con-
trolled substance.” U.S.S.G. § 2D1.1(b)(12). Sanchez ob-
jected to this enhancement for two reasons. First, he
claimed that applying the enhancement to him violated
the ex post facto clause of the U.S. Constitution. He
based that argument on the fact that the enhancement
did not become effective until November 1, 2010, over
a year after he committed his offense. See U.S.S.G.
§ 2D1.1(b)(12) & app. C. amend. 748 (Nov. 1, 2010).
Second, Sanchez argued that the enhancement, as
written, did not apply to him. He claimed that he did
not maintain the premises, and, even if he did, he did
not do so for the purpose of selling drugs. The district
court overruled the objection on both grounds, adopted
the PSR’s factual findings, and applied the sentencing
enhancement to Sanchez.
At Sanchez’s sentencing hearing, defense counsel
discussed various factors that militated in favor of a
mitigated sentence. Relevant here, counsel brought to
the court’s attention the sentencing of Gascar-Corona.
The district court had not yet sentenced Gascar-Corona,
but the government had recommended a lesser punish-
ment than it had for Sanchez, in exchange for Gascar-
Corona’s helpful information. Sanchez argued that this
disparity could not stand. Specifically, he claimed that
he tried to cooperate just as much as Gascar-Corona, but,
because Gascar-Corona was more deeply enmeshed in
the drug business, he had more useful information to
offer. Sanchez argued that it did not make sense to
reward Gascar-Corona for being the more culpable
party. The district court said that it was too speculative
to consider Gascar-Corona’s sentence at that time, and it
No. 11-3529 5
thus could not use the information in determining
Sanchez’s punishment. The district court also noted
that “the Seventh Circuit does not look with approval
on sentencing in terms of comparison between co-defen-
dants, to make it all come out . . . symmetrical.” (Sent. Tr.
at 20.)
On October 25, 2011, the district court sentenced
Sanchez to 262 months of incarceration, followed by
five years of supervised release. This sentence repre-
sented the minimum penalty recommended by the Sen-
tencing Guidelines. As of this writing, Gascar-Corona
has yet to be sentenced, although his plea agreement
recommends a sentence of 126 months. Sanchez
timely filed a notice of appeal regarding his sentence
on November 8, 2011.
II. A NALYSIS
Sanchez presents four issues on appeal. First, he
renews his objection that the sentencing enhancement
found in U.S.S.G. § 2D1.1(b)(12), as applied to him,
violates the ex post facto clause. Second, he also renews
his claim that the enhancement, even if it could be con-
stitutionally applied to him, simply does not apply,
given the facts of his case. Third, Sanchez argues that
the district court committed a procedural error by not
considering the disparity with Gascar-Corona’s potential
sentence. Finally, he argues that the court committed
a substantive error by imposing an unreasonable sen-
tence in light of Sanchez’s cooperation with the govern-
ment. We address each of these arguments in turn.
6 No. 11-3529
A. Ex Post Facto Clause
The Constitution prohibits ex post facto laws. U.S. Const.
art. I, § 9, cl. 3. Sanchez claims that, when applied
to him, the new sentencing enhancement found in
§ 2D1.1(b)(12) violates that prohibition. The sequence of
events is critical to understanding this claim. Sanchez
stopped distributing cocaine in June or July 2009, but he
did not plead guilty until April 2011. In the intervening
time, as part of the Fair Sentencing Act of 2010,
Congress mandated that the Sentencing Commission
promulgate the enhancement at issue. P.L. 111-220 § 6(2),
124 Stat. 2372, 2373. The Sentencing Commission did so,
and the enhancement became effective on November 1,
2010. See U.S.S.G. § 2D1.1(b)(12) & app. C. amend. 748
(Nov. 1, 2010). Because the enhancement did not take
effect until after Sanchez committed his offense, he thus
contends that the district court could not apply it to him
without violating the ex post facto clause. This claim
presents a constitutional question, which we review
de novo. Anderson v. Milwaukee County, 433 F.3d 975,
978 (7th Cir. 2006).
We can make short work of Sanchez’s argument. In
United States v. Demaree, we held that amendments to
advisory sentencing guidelines do not implicate the
ex post facto clause, even if the amendments were
passed after the defendant committed the offense. 459
F.3d 791, 795 (7th Cir. 2006). Sanchez spent a significant
portion of his brief discussing how other circuits have
reached a different conclusion, but, as we have said
before, we “respectfully disagree” with our sister circuits
No. 11-3529 7
on this issue. United States v. Robertson, 662 F.3d 871, 876
(7th Cir. 2011). For that reason, we have consistently
rejected Sanchez’s familiar argument. See, e.g., United
States v. Wasson, 679 F.3d 938, 951 (7th Cir. 2012);
United States v. Conrad, 673 F.3d 728, 736-37 (7th Cir.
2012); Robertson, 662 F.3d at 876 (collecting cases).1
Sanchez’s attempts to distinguish Demaree also prove
unavailing. First, Sanchez argues that we should treat
§ 2D1.1(b)(12) differently because Congress wrote it
and mandated its inclusion in the Guidelines, rather
than using the standard method of delegating that duty
to the Sentencing Commission. This argument misses
the point of Demaree. The fact that Congress wrote the
enhancement does not alter the fact that it is still part
of advisory guidelines, which, under Demaree, do not
implicate the ex post facto clause. 459 F.3d at 795.
Sanchez’s argument would have force if Congress
enacted a statutorily-required minimum punishment
for maintaining a drug house, but that is not the case.
Second, Sanchez attempts to distinguish Demaree by
arguing that, unlike the defendant in that case, he was
“blindsided by a change in the law,” which thus im-
plicates the “core concern of the ex post facto prohibi-
tion.” (Appellant’s Br. at 16.) Sanchez’s counsel explained
at oral argument that the enhancement “made something
1
We do note, however, that the U.S. Supreme Court has
granted a writ of certiorari in one of our cases reiterating the
holding of Demaree. United States v. Peugh, 675 F.3d 736 (7th
Cir. 2012), cert. granted, 133 S. Ct. 594 (Nov. 9, 2012).
8 No. 11-3529
illegal that was not illegal at the time of the offense.”
We cannot see the logic in this argument. It is not as if
the enhancement suddenly made selling drugs in one’s
home illegal. Sanchez’s cocaine sales were clearly
illegal from the beginning, and he knew that he could be
punished for them, regardless of where the transactions
occurred. Thus, the enhancement merely increased the
advised punishment for already illegal conduct, which
does not implicate the ex post facto clause. See Demaree,
459 F.3d at 795.
B. Sentencing Enhancement
Sanchez next argues that the facts of his case do not
satisfy the requirements of the sentencing enhancement
found in § 2D1.1(b)(12). To review, the enhancement
applies when the defendant “maintained a premises for
the purpose of manufacturing or distributing a con-
trolled substance.” U.S.S.G. § 2D1.1(b)(12). In the
district court, Sanchez made two arguments. First, he
contended that he did not “maintain” the residence
because he did not have an ownership interest in it.
Sanchez, however, has abandoned this argument on
appeal and thus waives it. See Int’l Union of Operating
Eng’rs, Local 150 v. Rabine, 161 F.3d 427, 432 (7th Cir. 1998).
In this court, Sanchez only pursues his second argu-
ment—that he primarily used the home as a residence
for his family, not for “manufacturing or distributing
No. 11-3529 9
a controlled substance.” 2 U.S.S.G. § 2D1.1(b)(12). As
we consider this claim, we review the district court’s
factual findings for clear error but review de novo its
application of those findings to the Sentencing Guide-
lines. United States v. Eubanks, 593 F.3d 645, 649 (7th
Cir. 2010).
We begin by examining the district court’s findings
of fact, which we will set aside only if we have a “definite
and firm conviction that a mistake has been made.”
United States v. McCauley, 659 F.3d 645, 649 (7th Cir.
2011). We lack such a conviction here. In deciding that
the enhancement applied to Sanchez, the district court
adopted the factual findings of the PSR. (Sent. Tr. at 4.)
Specifically, the PSR stated that Sanchez “would receive
the supply of drugs directly at his garage and payment
would be picked up from the garage at a later date.”
(PSR at 4.) At the sentencing hearing, Sanchez’s counsel
did not object to this information. (Sent. Tr. at 3.) Rather,
counsel implicitly confirmed it by stating, “whatever
storage of drugs took place there really wasn’t in the
residence [it was in the garage or attic], and would be
there for a very brief time, almost immediately trans-
2
Sanchez’s opening brief stated in passing that he “main-
tained” the home as a residence but only “use[d]” it for drug
transactions, which, according to him, does not qualify for
the enhancement. (Appellant’s Br. at 24); see also U.S.S.G.
§ 2D1.1(b)(12). Because Sanchez concedes that he maintained
the premises in some fashion, we read this argument as
geared only toward whether he maintained them for the
purpose of his drug transactions.
10 No. 11-3529
ferred to buyers.” (Id. at 4.) Given that Sanchez did not
argue that the information in the PSR was false, and,
indeed, further buttressed its account of the events, we
cannot say that the district court clearly erred in
adopting the PSR’s factual findings.
Since we affirm the decision to adopt the factual state-
ments in the PSR, we now review de novo whether those
facts satisfy the legal standard set out in § 2D1.1(b)(12).
See Eubanks, 593 F.3d at 649. We first turn to the applica-
tion note that accompanies the enhancement:
Manufacturing or distributing a controlled sub-
stance need not be the sole purpose for which
the premises was maintained, but must be one
of the defendant’s primary or principal uses for
the premises, rather than one of the defendant’s
incidental or collateral uses for the premises. In
making this determination, the court should con-
sider how frequently the premises was used by
the defendant for manufacturing or distributing
a controlled substance and how frequently the
premises was used by the defendant for lawful
purposes.
U.S.S.G. § 2D1.1(b)(12), cmt. n.17.3 Given the above, the
enhancement clearly contemplates that premises can
3
When this case was briefed and argued, this application note
was number 28. Since then, the application notes have been
renumbered, and the note became number 17. See U.S.S.G.
§ 2D1.1(b)(12) & app. C. amend. 770 (Nov. 1, 2012). There was
no change in the language of the note itself.
No. 11-3529 11
have more than one principal use. We can thus dispose of
the argument that, because Sanchez primarily used the
home for raising a family, he could not have also
primarily used it for selling drugs. Rather, the proper
inquiry is whether the drug transactions were a second
primary use of the premises or were instead merely
a collateral use.
At the time of oral argument for this appeal, no
appellate court had published a decision substan-
tively interpreting § 2D1.1(b)(12). Unpublished cases and
district court opinions presented only much clearer cases.
See United States v. Sandoval-Chavez, 477 Fed. Appx. 154, 156
(5th Cir. 2012) (enhancement applied when defendant
did not live in the premises used for the transactions);
United States v. Morales-Ortuno, 879 F. Supp. 2d 608, 610
(E.D. Tex. 2012) (enhancement did not apply when de-
fendant had leased premises for less than a week prior
to arrest and had not participated in any drug transac-
tions during that time); United States v. Ortiz, 807 F. Supp.
2d 746, 749 (N.D. Ill. 2011) (enhancement did not
apply when defendant did not live in the premises and
had only used them one time for a drug transaction).
After oral argument, however, the Eighth Circuit re-
leased an opinion much closer to this case. In United
States v. Miller, Rebecca Miller was convicted of con-
spiracy to distribute a methamphetamine mixture.
698 F.3d 699, 702 (8th Cir. 2012). The primary offender
was Miller’s husband, who used the family home to
distribute as much as two kilograms of methamphet-
amine per week over a six-year period. Id. Miller,
12 No. 11-3529
however, also participated. “[O]n several occasions she
and her 17-year-old son assisted in the distribution . . .,
including three occasions when she received money”
from an informant-purchaser. Id. Miller’s sentence in-
cluded the enhancement found in § 2D1.1(b)(12), but
she contended it did not apply because she primarily
used the premises as a family home. Id. at 705-06. The
Eighth Circuit disagreed. Id. at 706-07. The court found
that Miller’s participation in three purchases made her
use of the premises for drug sales more than collateral.
Id. The court also considered the “substantial” amount
of drug trafficking that occurred out of Miller’s home.
Id. at 707.
We find the Eighth Circuit’s reasoning informative.
Like that court, we believe the application note’s call
to compare the frequency of illegal and legal activities
at premises leads to odd results when the premises also
serve as a primary residence. See id.; see also U.S.S.G.
§ 2D1.1(b)(12), cmt. n.17. In such cases, the family home
is “by definition . . . used for that lawful purpose 100%
of the time.” Miller, 698 F.3d at 707. Yet, if that statistic
alone prevented the enhancement from applying, it
would never apply when residences are involved and
would undermine the note’s guidance that premises
can have more than one principal use.
For that reason, the Eighth Circuit, after taking fre-
quency into account, also considered other factors. See
id. at 706-07. This approach conforms with the applica-
tion note, which instructs courts to consider frequency
but does not foreclose examining other indicia. See
No. 11-3529 13
U.S.S.G. § 2D1.1(b)(12), cmt. n.17. In determining what
else to consider, the Eighth Circuit turned to the case
law surrounding 21 U.S.C. § 856(a)(1), which makes it
a crime to “knowingly open, lease, rent, use, or main-
tain any place . . ., for the purpose of manufacturing,
distributing, or using any controlled substance.” This
language largely tracks that of U.S.S.G. § 2D1.1(b)(12).
In fact, Sanchez encouraged us to compare the new en-
hancement with § 856, (Appellant’s Br. at 23-24), and
the government agreed during oral argument.
Before considering the § 856 case law, however, we
must take into account the relevant difference in lan-
guage.4 The application note of § 2D1.1(b)(12) requires
that the prohibited uses be “one of the defendant’s
primary or principal uses for the premises.” U.S.S.G.
§ 2D1.1(b)(12), cmt. n.17. In contrast, the phrase in § 856
is more general; it merely requires that such use be
“the purpose” for maintaining the premises. 21 U.S.C.
§ 856(a)(1). Our case law holds that, under § 856, the
illicit use need not be the sole purpose. United States
4
The specific language that Sanchez drew our attention to is
actually irrelevant to his case. He sought to highlight the
narrower scope of the sentencing enhancement; it only
applies when a defendant “maintained” the premises, U.S.S.G.
§ 2D1.1(b)(12), whereas 21 U.S.C. § 856(a)(1) applies when
the defendant “open[ed], lease[ed], rent[ed], use[d], or
maintain[ed]” the premises. Because Sanchez does not dispute
that he maintained the premises, this difference has no bearing
on our analysis, which solely focuses on cases interpreting
the phrase “for the purpose of.” 21 U.S.C. § 856(a)(1).
14 No. 11-3529
v. Church, 970 F.2d 401, 406 (7th Cir. 1992). Other
circuits, however, have further explained that, “ ‘in the
residential context, the manufacture (or distribution
or use) of drugs must be at least one of the primary or
principal uses to which the house is put.’ ” United States
v. Shetler, 665 F.3d 1150, 1162 (9th Cir. 2011) (quoting
United States v. Verners, 53 F.3d 291, 296 (10th Cir. 1995)).
That language almost precisely matches the application
note for § 2D1.1(b)(12). The only remaining difference is
that § 856(a)(1) also punishes “use” of controlled sub-
stances on the premises, 21 U.S.C. § 856(a)(1), which the
sentencing enhancement does not, U.S.S.G. § 2D1.1(b)(12).
Given this similarity in language, we find informative
how these other courts determined whether distributing
drugs represented a “primary or principal” use of prem-
ises. The Tenth Circuit was particularly concerned with
whether prohibited uses of the property included “charac-
teristics of a business,” such as “investment in the tools
of the trade . . .; packaging materials . . .; financial
records; profits . . .; and the presence of multiple em-
ployees or customers.” Verners, 53 F.3d at 296-97. The
Ninth Circuit took into account the presence of com-
mercial drug transactions for profit. Shetler, 665 F.3d at
1162-63. Finally, in Miller, the Eighth Circuit summarized
cases like Shetler as considering whether drug sales on
the premises were “substantial.” Miller, 698 F.3d at 707.
Thus, in making its determination, the Eighth Circuit
considered both the frequency the premises were used
for the prohibited purposes and whether sales from
such use were “substantial.” Id. at 706-07.
No. 11-3529 15
Miller’s approach is persuasive. In a residential case
like this one, a mere comparing of frequencies does not
alone answer the question. If it did, the enhancement
would never apply to those who sell drugs in their
homes. Like the Eighth Circuit, we do not think Congress
intended that result, especially when courts have up-
held numerous convictions of individuals selling drugs
out of their residences under the similarly worded 21
U.S.C. § 856(a)(1). See, e.g., United States v. West, 671 F.3d
1195, 1196-97 (10th Cir. 2012); United States v. Russell,
595 F.3d 633, 637-40 (6th Cir. 2010); Church, 970 F.2d
at 406. Notably, the Eighth Circuit’s approach also con-
forms with our closest decision on-point, which upheld
a § 856(a)(1) conviction for an individual who sold
drugs from his home, when such sales were “significant.”
Church, 970 F.2d at 406.
For these reasons, we now apply Miller’s approach
to this case. Specifically, we will consider both the fre-
quency the prohibited uses occurred on the premises and
whether those uses were significant in scope. Neither a
specific frequency nor a particular significance automati-
cally warrants applying the enhancement. Rather,
we consider the two in tandem and determine whether
the prohibited purpose can be fairly described as a “pri-
mary or principal” use of the premises.5 Here, there is
5
It is tempting to collapse frequency into part of a broader
“significance” inquiry. The application note, however, specifi-
cally instructs us to consider frequency. Thus, despite the
(continued...)
16 No. 11-3529
little question as to the proper outcome, because both
factors clearly warrant applying the enhancement
to Sanchez.
We begin with frequency. As Sanchez points out, the
PSR is vague about the specific number of drug sales
that occurred in Sanchez’s home. However, when read
in its natural context, the report implies that all of the
transactions occurred in the home, and it does not
mention them having taken place anywhere else. (PSR
at 4.) The government corroborated that interpretation
at the sentencing hearing; counsel stated that it was
Sanchez’s “regular practice” to receive cocaine ship-
ments at home. (Sent. Tr. at 5.) Sanchez did not
challenge the statements in the PSR or the govern-
ment’s characterization of the events. Nor did he
mention a single other place where a transaction oc-
curred. Instead, Sanchez argued only that drugs
were not kept on the premises for very long and that
he primarily used the home as a residence. (Id. at 4.)
True, at oral argument for this appeal, Sanchez’s
counsel stated that transactions occurred at the home
only “sometimes.” But such factual disputes should have
been aired in the district court. See United States v. Sykes,
5
(...continued)
conceptual elegance of viewing frequency as an indicium
of significance, we do not see it as proper to relegate the
one consideration mentioned in the application note to a
mere sub-factor. For that reason, we think that frequency
must remain an independent part of the overall analysis.
No. 11-3529 17
598 F.3d 334, 339 (7th Cir. 2010) (“Sykes did not object
to the PSR in the district court and therefore waived
any such argument here unless he can show plain er-
ror”), aff’d, 131 S. Ct. 2267 (2011). In the future, if defen-
dants dispute relevant facts about frequency, we
encourage district courts to make specific findings on
the issue. Here, however, Sanchez did not raise this
dispute in the district court, and his counsel’s vague
statements on appeal do not distract us from the other
persuasive evidence the government has presented.
Over a two-year period, Sanchez regularly sold and
stored drugs in his home. (Sent. Tr. at 4-5.) That frequency
is sufficient to affirm the enhancement’s application.
The significant scope of these actions removes any
lingering doubt. During the two years that Sanchez sold
drugs, he was the largest wholesaler in a conspir-
acy responsible for nearly $2.5 million in drug traf-
ficking. He received massive amounts of cocaine in his
home and garage, sometimes as much as forty kilograms
at once. He would also pay Gascar-Corona for these
fronted drugs from the premises. Sanchez even allowed
Gascar-Corona to use the residence to meet other whole-
salers.6 Thus, in conducting this large drug trade, Sanchez
used his residence not only for the drop-off, storage,
6
This detail alone would not support a conviction under 21
U.S.C. § 856(a)(1). See United States v. Banks, 987 F.2d 463, 466
(7th Cir. 1993) (“it is not enough to open or maintain a place
that is used by others for proscribed purposes”). But we
think that, when considered in tandem with the other
evidence presented here, it speaks to the significant scope of
the transactions occurring at Sanchez’s residence.
18 No. 11-3529
and pick-up of drugs, but also as a secure place to settle
the financials. Finally, Sanchez had no legitimate job
and no source of income beyond his drug sales. For
these reasons, the illicit transactions occurring at the
premises were significant—in quantity, in scope, and
in importance to Sanchez’s livelihood. Given as much,
we can hardly say that Sanchez’s use of the home
for proscribed purposes was collateral. It was a
principal use of the premises. We therefore agree with
the district court’s decision to apply the sentencing en-
hancement to Sanchez.
C. Procedural Error
Reviewing a sentence involves two inquiries—one
procedural and one substantive. See United States v. Scott,
631 F.3d 401, 408 (7th Cir. 2011). The procedural inquiry
comes first; before we can review whether the district
court imposed a substantively reasonable sentence, we
must determine whether the court “considered the
factors relevant to that exercise.” United States v.
Cunningham, 429 F.3d 673, 679 (7th Cir. 2005). We
conduct this review de novo. United States v. Grigsby,
692 F.3d 778, 791 (7th Cir. 2012).
Proper sentencing procedure involves considering the
factors enumerated in 18 U.S.C. § 3553(a). Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Dean, 414
F.3d 725, 730-31 (7th Cir. 2005). One of those factors is
“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).
No. 11-3529 19
Sanchez interpreted the district court’s statements at
the sentencing hearing to mean that the court thought
itself unable to consider disparities among co-defendants
as a matter of law. Sanchez thus contends that the court
did not give adequate consideration to a potentially
meritorious argument raised by counsel. See United
States v. Christiansen, 594 F.3d 571, 577 (7th Cir. 2010).
In addressing this claim, we proceed carefully to
avoid conflating two issues. Because the Sentencing
Commission has given great attention to unwarranted
disparities among similar defendants, a Guidelines
range sentence, like the one Sanchez received, necessarily
incorporates the concerns of 18 U.S.C. § 3553(a)(6). See
Gall, 552 U.S. at 54; see also United States v. Bartlett, 567
F.3d 901, 908 (7th Cir. 2009). That said, a district court
can go beyond the Sentencing Commission’s gen-
eralized consideration of the issue and take into account
disparities among particular co-defendants. See Bartlett,
567 F.3d at 908-09. If the district court was unaware
of that additional discretion, that, too, can be a procedural
error. See id. Thus, we need not consider whether the
district court incorporated the concerns of § 3553(a)(6);
by imposing a Guidelines sentence, it necessarily did.
Rather, we ask whether the district court knew it had
the even further power to lower Sanchez’s sentence in
light of his co-defendant’s punishment.
Looking at the record, we are convinced that the
district court did not think it was forbidden from con-
sidering potential disparities among co-defendants.
Instead, it simply declined to give weight to a
20 No. 11-3529
speculative sentence. The district court indeed said that
“the Seventh Circuit does not look with approval” on
comparing sentences among co-defendants. (Sent. Tr. at
20.) The district court, however, gave an even more
important reason for not considering Gascar-Corona’s
sentence: it had not yet been decided. As the court said,
it would be “just one step beyond speculation” to
consider a not-yet-imposed sentence. (Id. at 19.) Yes, the
court had access to the government’s recommended
sentence for Gascar-Corona. But the court was still a
long way from determining whether it would accept
that recommendation. In fact, over a year after Sanchez’s
sentencing hearing, Gascar-Corona still has not been
sentenced. We thus find that the district court knew it
had the ability to lower Sanchez’s sentence and com-
mitted no procedural error.
D. Substantive Error
We now turn to the second part of reviewing a sen-
tence—whether the penalty was “substantively reason-
able.” Scott, 631 F.3d at 408. Under the procedural
inquiry, we have “satisf[ied] ourselves” that the court
“exercised [its] discretion,” Cunningham, 429 F.3d at 679,
so we review the substance of its determination for
abuse of discretion, Grigsby, 692 F.3d at 791. Furthermore,
we presume any sentence within a properly calculated
Guidelines range is reasonable. United States v. Vallar,
635 F.3d 271, 279 (7th Cir. 2011). Because the district
court gave Sanchez the lowest possible sentence
within the correct Guidelines range, that presumption
No. 11-3529 21
applies here. The burden falls on Sanchez to rebut the
presumption, see id., but he cannot do so. Sanchez only
alleges that his sentence was unreasonable in light of
his cooperation attempts and the potential disparity
with Gascar-Corona’s sentence. Neither claim persu-
ades us that the district court abused its discretion.
During the sentencing colloquy, the district court ac-
knowledged Sanchez’s efforts to cooperate but also
took note of the fact that those efforts yielded no fruit
for the government. (Sent. Tr. at 20-21.) The court ex-
plained that, in recognition of such cooperation, it was
persuaded to accept the government’s recommendation
for a sentence at the low end of the Guidelines range.
(Id. at 24.) The court took Sanchez’s cooperation at-
tempts into account and even rewarded him for them.
We think this approach was entirely reasonable. Sanchez
received some compensation for his efforts but did not
reap an even larger benefit because his tips did not
materially help the government. Using such a tangible
criterion to determine how much a defendant is
rewarded for cooperation strikes us as fair, and it cer-
tainly does not rebut a presumption of reasonableness.
Finally, Sanchez does not convince us that the district
court acted unreasonably in declining to give him
a sentence closer to Gascar-Corona’s recommended
punishment. As we said earlier, the district court had
not yet sentenced Gascar-Corona and was a long way
from doing so. It makes no sense for the court to alter
what it has found to be a fair sentence in this case based
upon the speculated punishment of another individual.
22 No. 11-3529
Furthermore, any difference between the sentences
was warranted, given the significant difference in the
helpfulness of the Gascar-Corona’s information. See
United States v. Matthews, 701 F.3d 1199, 1204-05 (7th Cir.
2012) (“[Section] 3553(a)(6) disallows unwarranted sen-
tence disparities, not all sentence differences. A sen-
tencing difference is not a forbidden ‘disparity’ if it is
justified by legitimate considerations . . . .”) (internal
citation, quotation marks, brackets, and ellipses omitted).
For these reasons, Sanchez has not rebutted the pre-
sumption that his sentence was substantively reason-
able. As we have said before, the lowest possible sentence
recommended by the Guidelines, like the one Sanchez
received, “will almost never be unreasonable.” United
States v. Leiskunas, 656 F.3d 732, 737 (7th Cir. 2011); Vallar,
635 F.3d at 279; United States v. Tahzib, 513 F.3d 692, 695
(7th Cir. 2008). That statement holds true again today.
We find that the district court did not abuse its discre-
tion in imposing the sentence it did.
III. C ONCLUSION
For the foregoing reasons, we A FFIRM Sanchez’s sen-
tence.
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