United States v. Roberto Sandoval-Velazco

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3878
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERTO SANDOVAL-VELAZCO,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:10-cr-00333-2 — James B. Zagel, Judge.
ARGUED SEPTEMBER 23, 2013 — DECIDED DECEMBER 3, 2013
Before BAUER, KANNE, and HAMILTON, Circuit Judges.
KANNE, Circuit Judge. Roberto Sandoval-Velazco appeals
the district court’s denial of a mitigating role reduction as well
as the district court’s application of post-Booker sentencing.
Sandoval-Velazco argued at sentencing that his role as a
courier should entitle him to a minor role reduction. The
district court found that he had considerable contact with large
2 No. 12-3878
amounts of narcotics and denied the reduction. For the reasons
set forth below, we affirm.
I. BACKGROUND
As early as 2009, Sandoval-Velazco, together with co-
defendants Antonio Mendoza and Manuel Chavez, coordi-
nated the distribution of large quantities of cocaine, heroin, and
marijuana for a Mexican drug-trafficking organization in
Chicago. Sandoval-Velazco also assisted in the collection and
transportation of United States currency, which comprised the
proceeds from the sale of these narcotics. Sandoval-Velazco
primarily acted as a courier. He received instructions on where
to obtain and deliver the narcotics from higher-ranked mem-
bers of the organization. Sandoval-Velazco’s probation officer
stated in the Presentence Investigation Report (“PSR”) that he
was personally responsible for more than 150 kilograms of
cocaine and 8.5 kilograms of heroin.
On April 28, 2010, Sandoval-Velazco, along with five
others, was charged with conspiracy to possess and distribute
five or more kilograms of cocaine, in violation of 21 U.S.C.
§ 846. Sandoval-Velazco pled guilty to five counts in connec-
tion with the distribution of illicit drugs.1
1
Sandoval-Velazco pled guilty to: (1) conspiring to possess five or more
kilograms of cocaine with intent to distribute, 21 U.S.C. § 846; (2) possessing
five or more kilograms of cocaine with intent to distribute, 21 U.S.C. §
841(a)(1); (3) possessing five kilograms or more of cocaine and one or more
kilograms of heroin with the intent to distribute, 21 U.S.C. § 841(a)(1); and
two counts of (4) using a telephone in furtherance of a drug-trafficking
crime, 21 U.S.C. §§ 843(b), 846.
No. 12-3878 3
According to the PSR, Sandoval-Velazco’s base offense
level was 38, as the amount of narcotics was equivalent to
46,400 kilograms of marijuana. He was granted a three-level
reduction for acceptance of responsibility, which lowered his
total offense level to 35. The probation officer determined that
no mitigating role adjustment was applicable because he was
fully active in the conspiracy. She found that Sandoval-Velazco
completed all tasks that were asked of him, which included
obtaining and distributing large quantities of cocaine and
heroin.
Sandoval-Velazco filed an objection to the PSR, arguing that
he should be entitled to a two or three-level reduction for
having a minor role in the drug conspiracy. In support of his
claim, Sandoval-Velazco maintained that he did not exercise a
leadership role, that he was only following the orders of his
superiors, that he did not use any special skills in carrying out
those orders, and that he merely acted as a courier. He also
argues that he was subordinate to his co-defendant Mendoza,
who was the average member of the conspiracy and who,
unlike Sandoval-Velazco, was permitted to negotiate and
coordinate with cocaine suppliers at the direction of his
superiors.
The government argued that Sandoval-Velazco was an
average participant in the conspiracy, with a role similar to
Mendoza, whose involvement began after Sandoval-Velazco’s.
Sandoval-Velazco was not a mere courier for a minor drug
scheme; for more than a year and a half he transported both
large quantities of narcotics and millions of dollars in drug
proceeds.
4 No. 12-3878
The district court denied Sandoval-Velazco’s request for a
minor role reduction. In doing so, the district court found that
the most significant factor when determining culpability for a
drug conspiracy is an individual’s relation to quantity. It found
that Sandoval-Velazco had an “intimate and substantial”
connection to considerable amounts of narcotics. The district
court went on to explain that Sandoval-Velazco’s transporta-
tion of these large quantities of drugs, despite the fact that he
was only following orders, supported finding a high level of
culpability.
The district court then addressed whether Sandoval-
Velazco was entitled to a sentence below the range set forth by
the guidelines. In holding that he was not, the court found that
his status as a courier did not confer a lesser degree of culpabil-
ity and sentenced him to 135 months’ imprisonment, which
was the lowest sentence in the range set forth in the guidelines.
II. ANALYSIS
Sandoval-Velazco raises two issues on appeal. First, he
contends that the district court erred in rejecting his claim for
a minor role reduction by basing its decision solely on the
quantity of drugs involved in the conspiracy. Second,
Sandoval-Velazco alleges that the district court committed
procedural error in failing to recognize its own authority to
grant a below-guideline sentence.
A. Minor Role Reduction
We review a district court’s interpretation and application
of the federal sentencing guidelines to the facts de novo, United
States v. Abbas, 560 F.3d 660, 662 (7th Cir. 2009), and the
No. 12-3878 5
decision to deny a minor role reduction for clear error. United
States v. Miller, 405 F.3d 551, 557 (7th Cir. 2005). Clear error will
only be found if we review the evidence and conclude “with a
definite and firm conviction that a mistake has been commit-
ted.” United States v. Leiskunas, 656 F.3d 732, 739 (7th Cir. 2011).
We will rarely reverse, as the sentencing court is in the best
position to determine the role that a defendant had in the
criminal activity. Id.Sandoval-Velazco believes that the district court committed
clear error in denying him a minor role reduction as he served
only a menial role in the conspiracy. Sandoval-Velazco bears
the burden of proving by a preponderance of the evidence that
a minor role adjustment is justified in his case. United States v.
Panaigua-Verdugo, 537 F.3d 722, 724 (7th Cir. 2008). To succeed,
he must show that he was substantially less culpable than the
average participant in the conspiracy. United States v. Gonzalez,
534 F.3d 613, 616 (7th Cir. 2008). The determination of whether
an individual is entitled to a reduction is based on the totality
of the circumstances of each particular case. U.S.S.G. § 3B1.2
cmt. n.3(C); see United States v. Diaz-Rios, 706 F.3d 795, 799 (7th
Cir. 2013) (in determining whether to give a reduction, a
district court is to look at the defendant’s role in the conspiracy
as a whole, “including the length of his involvement in it, his
relationship with the other participants, his potential financial
gain, and his knowledge of the conspiracy.”).
Sandoval-Velazco argues that the district court erred in its
minor role analysis by basing its decision solely on the quantity
of drugs involved rather than the actual role Sandoval-Velazco
exercised in the conspiracy as evaluated against his co-conspir-
6 No. 12-3878
ators. He fails to recognize that the court analyzed the quantity
of drugs for which he was responsible not to establish guilt per
se, but to establish what role Sandoval-Velazco played in the
drug conspiracy as a whole. It found his “intimate and substan-
tial” connection to large quantities of narcotics to be determina-
tive of the relative magnitude of his role in general. United
States v. Gallardo, 497 F.3d 727, 741 (7th Cir. 2007). And this was
not the only factor utilized in the district court’s analysis. The
court also implicitly recognized Sandoval-Velazco’s role as a
subordinate and acknowledged that he took orders from
individuals that were higher up in the conspiracy. The court
noted: “Sale and distribution might be another factor of great
significance, but quantity counts, which means that the person
who transports a lot of drugs rates fairly high on the culpabil-
ity level even if what they’re doing they’re doing at the
command of others.” The court recognized that while
Sandoval-Velazco may have only been a courier taking
direction from others, he still played an integral part in the
conspiracy and did not deserve a minor role reduction. See
Panaigua-Verdugo, 537 F.3d at 725 (couriers may play an
important role in a drug distribution scheme and are not
automatically entitled to a mitigating role reduction).
While it may have been more effective to have an explicit
discussion regarding the average member of the conspiracy,
we cannot hold that such wording is required at every
sentencing hearing. Each case presents its own set of facts,
which are to be examined by the sentencing judge under the
totality of the circumstances. U.S.S.G. § 3B1.2 cmt. n.3(C) (“The
determination whether to apply [a mitigating role reduction]
is based on the totality of the circumstances and involves a
No. 12-3878 7
determination that is heavily dependent upon the facts of the
particular case.”). It is not necessary to describe the exact
characteristics of the average member of the conspiracy if we
can ascertain from the sentencing court’s analysis that a
comparison to other members of the conspiracy was at least
implicitly made. United States v. Saenz, 509 Fed. App’x 543, 548
(7th Cir. 2013).
Both Mendoza and Sandoval-Velazco were accountable for
the distribution of at least 150 kilograms of cocaine and at least
ten kilograms of heroin. At sentencing, the district court heard
arguments from both parties concerning the culpability of
Mendoza and whether he played a greater role in the conspir-
acy than Sandoval-Velazco. Sandoval-Velazco argued that he
was only a courier for Mendoza and lacked the decision-
making authority that Mendoza exercised. He recognized that
he was a member of the conspiracy for a longer period of time,
but nonetheless claimed to have held an insignificant role
throughout his involvement. The government argued that
Sandoval-Velazco’s role was similar to that of Mendoza—each
was responsible for similar quantities of narcotics—and was a
participant for a much longer period of time.
Consequently, the evidence before the district court at
sentencing included the quantity of drugs, the length of time
that Mendoza and Sandoval-Velazco were involved in the
conspiracy, and whether or not Sandoval-Velazco was simply
a courier. In weighing the evidence, the district court found the
quantity of drugs handled by Sandoval-Velazco to be the
conclusive factor in determining culpability. 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
8 No. 12-3878
in connection with those drugs. Cf. Diaz-Rios, 706 F.3d at 799
(“Naturally, the court was entitled to take into account the
substantial drug quantity involved here, but it is unclear what
effect the court gave the government’s insistence that notwith-
standing the substantial amount of cocaine entrusted to Diaz-
Rios, his role in the offense was nonetheless minor.”). The court
found that Sandoval-Velazco had an “intimate and substantial”
relationship with large quantities of drugs for more than a
year, despite doing so at the behest of his superiors. In other
words, the court implicitly found that Sandoval-Velazco was
no simple courier or chauffeur, and was therefore not substan-
tially less culpable than the average member of the conspiracy.
Sandoval-Velazco played an integral part in the drug conspir-
acy and was not deserving of a minor role reduction.
B. District Court’s Sentencing Authority
Sandoval-Velazco also alleges that the district court erred
in failing to recognize the authority to impose a below-guide-
lines sentence. Whether a district court followed proper
sentencing procedures, including whether it exercised proper
discretion in considering the guidelines, is a legal question
reviewed de novo. United States v. Pulley, 601 F.3d 660, 664 (7th
Cir. 2010). When a district court does not consider an argument
because it is unaware of its authority to do so, a remand is
warranted. United States v. Taylor, 520 F.3d 746, 748 (7th Cir.
2008).
The government argued that a sentence within the guide-
lines adequately reflected the nature, duration, and extent of
Sandoval-Velazco’s criminal activity. Sandoval-Velazco
countered by indicating that he would be deported following
No. 12-3878 9
his sentence, which constituted additional punishment given
the fact that he would be leaving behind a fiancee and child.
He also indicated that he had no prior arrests or criminal
record and again emphasized that he was merely a courier in
the conspiracy.
The district court found that being a courier was not an
automatic entitlement to a below-guidelines sentence: “I
recognize also that while the law does not recognize this, there
are many people who believe that if you just carry this stuff
from one place to another it’s not the same thing as being a
drug dealer.” The court further stated that “the truth of the
matter is, Congress could have declared that to be the case,
they just didn’t.” The court then addressed Sandoval-Velazco’s
role in the offense, explaining that while he was not being
given an aggravating role enhancement, he was nonetheless
responsible for repeatedly transporting large amounts of
narcotics over an extended period of time.
Sandoval-Velazco claims that the district court committed
procedural error in failing to recognize its own authority to
implement a below-guidelines sentence. He derives this notion
from the district court’s statement regarding the lack of
Congressional action for sentencing couriers at a lower level
than other members of a drug-trafficking conspiracy.
Sandoval-Velazco alleges that the district court appeared to be
sympathetic to his arguments at sentencing, but absent some
mandate by Congress the district judge believed that he could
not consider them.
Certainly, a district court is within its authority to impose
a sentence outside of that recommended by the guidelines.
10 No. 12-3878
United States v. Corner, 598 F.3d 411, 416 (7th Cir. 2010) (“[A]
judge who understands what the Commission recommends,
and takes account of the multiple criteria in § 3553(a), may
disagree with the Commission’s recommendation categorically,
as well as in a particular case.”). Here, there is nothing to
suggest that the district court was unaware of its authority to
sentence Sandoval-Velazco below the minimum sentence
recommended by the guidelines. The district court’s statement
on Congressional policy simply demonstrates that it consid-
ered Congress’ judgment in treating narcotics couriers simi-
larly to narcotics distributors—had Congress meant for
couriers to be sentenced less severely as a matter of course, it
would have said as much. Moreover, the district court’s
statement that it was “going to give him a guideline sentence”
signifies that it fully understood that it was within its rights to
do otherwise. Thus, we find no error in the district court’s
sentencing of Sandoval-Velazco.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
denial of a mitigating role reduction and its application of the
sentencing guidelines.