United States v. Robert Ranjel , 872 F.3d 815 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3778
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT RANJEL,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 720-1 — Samuel Der-Yeghiayan, Judge.
____________________
ARGUED NOVEMBER 1, 2016 — DECIDED SEPTEMBER 29, 2017
____________________
Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. In 2002 Robert Ranjel was indicted
for participating in a Latin Kings drug-trafficking conspiracy
operating in Aurora, Illinois. He fled to Mexico and re-
mained there for nearly a decade. He surrendered in 2011
and a jury later convicted him of conspiracy and related
drug crimes. The district judge imposed a sentence of
235 months in prison followed by a five-year term of super-
vised release.
2 No. 15-3778
Ranjel raises several claims of sentencing error. He ar-
gues that the judge (1) miscalculated the drug quantity;
(2) misapplied a guidelines enhancement for his role as a
manager or supervisor in the conspiracy; (3) misapplied a
guidelines enhancement for obstruction of justice; (4) erro-
neously considered evidence of his involvement in a gang-
related murder; and (5) failed to explicitly note that the
guidelines recommended a three-year term of supervised
release or explain why he opted for a five-year term.
We affirm. Ranjel waived the fifth claim of error. The oth-
ers are meritless.
I. Background
Ranjel was a member of the Latin Kings gang and was
deeply involved in its drug-trafficking operation in Aurora,
Illinois. In 2002 he was indicted for conspiracy to distribute
controlled substances, see 21 U.S.C. § 846, and three counts of
distributing cocaine, see id. § 841(a)(1). When the arrest
warrant issued, Ranjel fled to Mexico and remained there for
almost a decade. In 2011 he turned himself in to the
U.S. Consulate in Monterrey, Mexico, and was returned to
the United States. His case proceeded to trial the following
year. The government’s evidence included testimony from
federal agents, a confidential informant, and several cocon-
spirators, as well as recordings of wiretapped phone calls
among the coconspirators. The jury convicted Ranjel on all
counts.
The judge ordered a presentence report (“PSR”) and spe-
cifically directed the probation office to “release the sentenc-
ing recommendation portion of the PSR” to both counsel.
The judge also ordered counsel to file any objections or
No. 15-3778 3
corrections in writing, together with sentencing memoranda
and position statements on the recommended conditions of
supervised release.
The PSR estimated that the drug quantity attributable to
Ranjel as relevant conduct was approximately 2.06 kilo-
grams of cocaine. That translated to a base offense level of
26. As relevant here, the probation office recommended
application of a three-level enhancement under U.S.S.G.
§ 3B1.1(b) for Ranjel’s role as a manager or supervisor in the
conspiracy. The probation office also recommended applica-
tion of a two-level enhancement for obstruction of justice
based on Ranjel’s flight to Mexico and nearly ten years as a
fugitive. See U.S.S.G. § 3C1.1. Finally, the PSR noted that the
guidelines term of supervised release was three years but
recommended that the judge impose a five-year term in-
stead. The PSR also included specific recommendations for
mandatory, discretionary, and special conditions of super-
vised release.
Ranjel’s attorney filed a sentencing memorandum raising
several objections to the PSR, but he did not object to any of
the recommendations regarding supervised release. Moreo-
ver, in a separate filing entitled Position on Conditions of
Supervised Release, Ranjel’s attorney acknowledged that he
had reviewed the PSR’s recommendations and “makes no
objection thereto.”
At sentencing the judge ruled on counsel’s objections, ul-
timately accepting the PSR’s recommendations. The gov-
ernment then presented witnesses who testified about
Ranjel’s involvement in a gang-related murder. Ranjel had
been charged with the murder but was acquitted. The judge
nonetheless credited the testimony of the government’s
4 No. 15-3778
witnesses and took the murder into account in weighing the
sentencing factors under 18 U.S.C. § 3553(a). The judge
imposed a sentence of 235 months in prison, the top of the
guidelines range, and a five-year term of supervised release
as recommended by the PSR. This appeal followed.
II. Discussion
Ranjel limits his appeal to sentencing issues. Most are at-
tacks on the judge’s factual findings. That’s a steep hill to
climb. We will not disturb a sentencing court’s factual
findings unless they are clearly erroneous. United States v.
Austin, 806 F.3d 425, 430 (7th Cir. 2015) (drug-quantity
calculations reviewed for clear error); United States v. Etchin,
614 F.3d 726, 738 (7th Cir. 2010) (credibility determinations
warrant “especially deferential” review); United States v.
Arceo, 535 F.3d 679, 687 (7th Cir. 2008) (obstruction-of-justice
findings are reviewed for clear error); United States v.
Hankton, 432 F.3d 779, 793 (7th Cir. 2005) (a finding that the
defendant had the role of a manager or supervisor is re-
viewed for clear error). Under the deferential clear-error
standard, we will reverse only if “after reviewing the entire
record, we are left with the firm and definite conviction that
a mistake has been made.” United States v. Marty, 450 F.3d
687, 689–90 (7th Cir. 2006) (quotation marks omitted).
A. Drug Quantity
The judge adopted the PSR’s estimate that Ranjel’s of-
fense conduct encompassed transactions totaling about
2.06 kilograms of cocaine. That figure was largely based on
the trial testimony of Juan Corral, Ranjel’s supplier, and
frequent recorded phone calls between the two.
No. 15-3778 5
Corral described three distinct but overlapping groups of
drug sales, each covering multiple weeks during the first
half of 2002. The first series occurred from February 1 to
March 31 and totaled 507 grams of cocaine. The second
series started in the spring and continued through the end of
June. Corral testified that during this period he sold Ranjel
quarter-kilogram quantities of cocaine a “few times.” The
PSR estimated that a “few times” meant at least three, for a
total of 750 grams. Finally, Corral testified that he sometimes
sold Ranjel additional one-eighth kilogram quantities of
cocaine. The recorded phone calls backed up this testimony,
capturing sales of this quantity roughly every other week
between April 1 and June 24, for a total of not less than
750 grams. The three subtotals sum to 2.007 kilograms (507 +
750 + 750 = 2007 grams). In addition to these transactions,
Ranjel also sold approximately 49 grams of cocaine to confi-
dential informants in three separate transactions, bringing
the combined total to 2.06 kilograms.
Ranjel challenges these calculations, arguing that the
750-gram subtotal was double-counted. Not so. The PSR
made clear that the identical subtotals were based on two
separate sets of transactions with Corral, and the frequency
and amounts of these separate sales were corroborated by
recorded phone calls.
Ranjel argues more generally that the drug-quantity cal-
culations were based on unreliable or imprecise evidence. In
particular, he attacks Corral’s testimony, which he says was
vague and marred by poor memory given the passage of
time. Ranjel can hardly seek refuge in the passage of time,
for which he is solely responsible. Regardless, calculating
drug quantities is “often difficult, and district courts may
6 No. 15-3778
make reasonable though imprecise estimates based on
information that has indicia of reliability.” United States v.
Bozovich, 782 F.3d 814, 818 (7th Cir. 2015); see also United
States v. Araujo, 622 F.3d 854, 863–64 (7th Cir. 2010) (holding
that the extrapolation of drug amounts “is permissible so
long as it is based on reliable data regarding the size and
frequency of the defendant’s transactions”). Corral was
Ranjel’s main supplier, and his testimony was corroborated
by more than 75 recorded phone calls between the two. And
on this record the 2.06-kilogram total is a conservative
estimate. The evidence showed that Ranjel used other co-
caine suppliers in addition to Corral and also that he sold
marijuana and prescription pills, neither of which was
added to the total drug quantity. We find no error.
B. Sentencing Enhancements
Ranjel next challenges the application of the guidelines
enhancement for his role as a manager or supervisor in the
conspiracy. The guidelines recommend a three-level upward
adjustment to the base offense level “[i]f the defendant was a
manager or supervisor … and the criminal activity involved
five or more participants or was otherwise extensive.”
U.S.S.G. § 3B1.1(b). The judge applied this adjustment based
on trial testimony establishing that Ranjel personally di-
rected at least three other coconspirators to package, distrib-
ute, or sell cocaine to various buyers. Other testimony
established that the Latin Kings drug-trafficking conspiracy
involved far more than five people.
Ranjel argues that the judge erroneously found that he
“managed five participants in a criminal activity.” But the
judge made no such finding; nor was he required to. The
enhancement applies if the defendant managed or super-
No. 15-3778 7
vised “one or more other participants” in criminal activity
that involved five or more people. § 3B1.1 cmt. n.2. Trial
evidence established that Ranjel directed one coconspirator
to hold drugs, another coconspirator to sell drugs, and a
third coconspirator to deliver cocaine to various retailers,
collect payment, and deliver the money to him. In other
words, Ranjel “exercised some control over others involved
in the commission of the offense,” which is enough to apply
the § 3B1.1(b) enhancement. United States v. Pagan, 196 F.3d
884, 892 (7th Cir. 1999) (quotation marks omitted).
Nor was it error to hold Ranjel accountable for obstruc-
tion of justice. See § 3C1.1. His flight to Mexico and nearly
ten years as a fugitive easily qualifies as obstruction of
justice, drawing a two-level enhancement under § 3C1.1.
Ranjel argues that the government was not prejudiced by his
fugitive status because federal drug agents knew where he
was and could have extradited him if they wanted to. He
also argues that his flight to Mexico did not impose addi-
tional costs on the government or otherwise affect the gov-
ernment’s case in any concrete way. Actual prejudice is not
needed. “[S]ection 3C1.1 applies to those defendants who
attempt to obstruct or to impede the administration of justice,
as well as to those who actually succeed in doing so.” United
States v. Porter, 145 F.3d 897, 904 (7th Cir. 1998) (emphasis
added).
Fleeing to another country is always “likely to burden a
criminal investigation or prosecution significantly—likely to
make the investigation or prosecution significantly more
costly or less effective than it would otherwise have been.”
United States v. Nduribe, 703 F.3d 1049, 1053 (7th Cir. 2013).
Moreover, although proof of actual prejudice is not required,
8 No. 15-3778
here the government established that Ranjel’s Mexican
sojourn imposed some real costs: A cooperator who pur-
chased cocaine from Ranjel died while Ranjel was at large;
drugs had to be retested because the crime lab kept its notes
for only ten years; and government agents and law-
enforcement witnesses retired or were no longer with their
agencies by the time Ranjel faced trial, making them more
difficult to locate. The judge properly applied the enhance-
ment for obstruction of justice.
C. Ranjel’s Involvement in a Gang-Related Murder
At sentencing the government called three witnesses who
testified to Ranjel’s involvement in a 1990 murder of a rival
gang member. According to these witnesses, Ranjel and two
fellow Latin Kings drove to the victim’s home, and each
fired a gun into the house, killing the victim. Ranjel was
tried for this murder and acquitted. Even so, an acquittal
does not preclude the judge from considering the underlying
conduct for sentencing purposes as long as the government
proves the conduct by a preponderance of the evidence.
United States v. Watts, 519 U.S. 148, 156–57 (1997).
Ranjel does not contest the legal point. Rather, he argues
that the government relied in part on a written proffer from
a coconspirator, which is hearsay, and its witnesses “were
admitted perjurers.” But hearsay is permissible at sentenc-
ing. See United States v. Grigsby, 692 F.3d 778, 787 (7th Cir.
2012). And the judge acknowledged that “[a]ll three witness-
es are convicted felons” who “told lies at times to the gov-
ernment officials, police officers and others.” He also recog-
nized that the witnesses “eventually cooperated with the
government and received reduced sentences based on those
No. 15-3778 9
cooperations.” Nonetheless, the judge found their testimony
credible.
A sentencing judge’s credibility determinations are enti-
tled to exceptional deference. United States v. Johnson,
342 F.3d 731, 735 (7th Cir. 2003). It was the judge’s job to take
the measure of the government’s witnesses, accounting for
the various reasons to doubt their testimony. The judge did
so here. He found the witnesses believable and considered
this evidence in weighing the § 3553(a) sentencing factors.
There was no error.
D. Supervised Release
Finally, Ranjel argues that the judge committed a proce-
dural error by failing to expressly calculate and state for the
record that the guidelines term of supervised release was
three years. He also contends that the judge did not ade-
quately explain his decision to impose an above-guidelines
term of five years. The government responds that Ranjel
waived these arguments by failing to raise them in the
district court when he was explicitly invited to object.
Waiver is the intentional relinquishment of a known
right. United States v. Bloch, 825 F.3d 862, 873 (7th Cir. 2016).
We have encouraged judges to provide advanced notice to
the parties of the contemplated term and conditions of
supervised release. See United States v. Kappes, 782 F.3d 828,
842–44 (7th Cir. 2015). Notice eliminates surprises at the
hearing and allows the defendant to “present an informed
response” to the proposed term and conditions. Id. at 843.
The sentencing hearing is the “main event,” and when notice
is given before the hearing, the parties can “prepare and
10 No. 15-3778
identify the issues they wish to address” ahead of time.
United States v. Lewis, 823 F.3d 1075, 1083 (7th Cir. 2016).
Ranjel faced a statutory minimum three-year term of su-
pervised release and a maximum of life. See 21 U.S.C. §§ 846,
841(b)(1)(C). The PSR gave him ample notice that the guide-
lines recommended the minimum three-year term. See
U.S.S.G. § 5D1.2. The probation office expressly recommend-
ed that the judge impose a five-year term instead, and this
part of the PSR was released to Ranjel’s counsel. The judge
ordered the parties to file written objections in advance of
the sentencing hearing. Ranjel did so, raising several objec-
tions. But he did not object to the calculation of the guide-
lines term of supervised release or the specific recommenda-
tion of an above-guidelines term of five years. And in a
separate filing specifically responding to the proposed
conditions of supervised release, counsel expressly acknowl-
edged that he had reviewed the recommendations and
“makes no objection thereto.”
At the sentencing hearing, the judge asked Ranjel’s attor-
ney if he had any further objections to the PSR other than
those in his sentencing memorandum. Counsel confirmed
that he did not. Near the end of the hearing, the judge asked
Ranjel’s attorney if he—the judge, that is—had “considered
all of [his] arguments.” Counsel confirmed this as well. After
imposing sentence, the judge asked if Ranjel’s attorney
wanted to raise any other issues. Counsel said, “no.”
In short, “[t]here were no surprises” at this sentencing
proceeding—certainly not on any aspect of supervised
release. Lewis, 823 F.3d at 1082. The judge gave Ranjel multi-
ple opportunities to object to the recommended term of
supervised release; he never did. We have no difficulty
No. 15-3778 11
concluding that Ranjel waived any procedural or substantive
challenge to the five-year term of supervised release.
AFFIRMED.