United States v. Rogelio Perez

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 8, 2014
Decided July 23, 2014
Before
DIANE P. WOOD, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13-2446
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 12 CR 437-1
ROGELIO PEREZ,
Defendant-Appellant. Charles P. Kocoras,
Judge.
ORDER
Rogelio Perez was sentenced to 188 months’ imprisonment after pleading guilty
to distributing crack cocaine. He argues that the sentencing court committed four
procedural errors: applying a presumption of reasonableness to the guidelines range,
basing the sentence on erroneous information, ignoring two of his principal arguments
in mitigation, and not adequately explaining the sentence. Although we are confident
No. 13-2446 Page 2
that the experienced trial judge was under no illusions about his ultimate sentencing
discretion, we find ourselves unable to assess the reasonableness of the sentence based
on the explanation the judge offered for it. We thus vacate the sentence and remand for
further proceedings.
I
In 2008 the Chicago Police Department and the FBI began investigating members
of Perez’s gang, the Imperial Gangsters, for drug and firearms offenses. Perez was
caught in the net: between March and July 2010, he sold an informant approximately
370 grams of crack. During one of the sales in April, the informant asked Perez if he also
had “some toys” for a customer, and Perez sold him one gun in addition to the crack. In
June 2012 the FBI arrested Perez and seized 121 grams of heroin he intended to deliver
to the informant. He was charged with seven counts of distributing drugs, 21 U.S.C.
§ 841(a)(1), and one count of possessing a firearm as a felon, id. § 922(g)(1).
Pursuant to a written agreement, Perez pleaded guilty to one count of
distributing crack. He also stipulated to the conduct underlying the other counts in the
indictment and agreed that he is a career offender for purposes of U.S.S.G. § 4B1.1. The
parties anticipated a total offense level of 31 (a base offense level of 34 less 3 levels for
acceptance of responsibility, see U.S.S.G. §§ 4B1.1(b)(2), 3E1.1) and a criminal-history
category of VI, yielding a guidelines imprisonment range of 188 to 235 months.
The probation officer agreed with the parties’ calculations. Perez’s criminal
history includes state convictions for selling crack in 1995, robbery and aggravated
battery in 1997, and aggravated robbery in 2000. All of these crimes are predicates for
career-offender status. See U.S.S.G. § 4B1.1(a). Perez conceded that the range was 188 to
235 months, but he asserted that something between 72 to 96 months would be
sufficient punishment because his prior convictions were remote in time and involved
only small drug sales.
The district court imposed a sentence of 188 months. The judge signaled his
awareness of the advisory nature of the guidelines in several ways. He noted that in the
past he had “ignored the Guidelines when [he] thought it was appropriate” but that
leniency would “not be the order of the day” in Perez’s case, because he believed that a
below-range sentence would “dishonor the integrity the law commands.” The court
added that Perez’s failure to change his life after his earlier stints in prison outweighed
his status as a father and his tumultuous upbringing. Perez had “earned his career
criminal status,” the court said, “whether it was long ago or more recent and whether
the deals were small.” And Perez had been “at the ready” in this case, the court
continued, to “sell drugs, sell crack and sell guns” to the informant. Thus, the court
concluded, “the Guidelines call it the right way,” and a sentence of 188 months was
“appropriate … under all of the 3553 factors.”
No. 13-2446 Page 3
II
Perez argues that the sentencing court committed four procedural errors: (1)
according the guidelines range a presumption of reasonableness; (2) basing the sentence
on inaccurate information; (3) overlooking Perez’s principal arguments in mitigation;
and (4) failing adequately to explain his chosen sentence. Although we find no merit in
arguments (1) and (3), we are unable to rule out the possibility that Perez’s sentence
was based on an inaccurate view of the record. We thus look briefly at the aspects of the
case for which we reject a claim of error, and then turn to the remainder.
Presumption of Reasonableness. Perez bases this argument on a few stray
remarks that the district court made during the sentencing hearing. At one point the
judge commented, “I just cannot do anything conscientiously to depart or go below the
Guidelines,” and in another spot he said, “I am not going to dishonor the integrity the
law commands by, in this case, going the way you want me to.” Perez compares his
case to United States v. Panice, 598 F.3d 426, 441–42 (7th Cir. 2010), in which this court
concluded that the district judge might have “inadvertently” treated the guidelines
range as presumptively reasonable even while acknowledging the guidelines to be
advisory.
A district court cannot presume that a sentence within the guidelines range
would be reasonable. Nelson v. United States, 555 U.S. 350, 352 (2009). This case,
however, differs significantly from Panice. There we were concerned about the
following statements: “I do not want to get to where I have to go here, but I have to go
there,” and defense counsel “had to deal with the statutory scheme that is
presumptively reasonable.” Panice, 598 F.3d at 441. Although the judge in Perez’s case
also said that he did not want “to do what I have to do,” taken in context there is no
way to view this as a mistaken view that it was the guidelines that were tying his
hands.
In contrast with Panice, in Perez’s case, far from characterizing the “statutory
scheme” as “presumptively reasonable,” see Panice, 598 F.3d at 441, the court went out
of its way to note that it had “ignored the guidelines when I thought it was
appropriate.” But no judge is ever required to ignore the guidelines, and this judge
expressly stated that he thought that for Perez “the Guidelines call it the right way.”
The judge went on to say that, although he would have preferred it if the circumstances
had warranted a lower sentence, he could not conscientiously impose such a sentence
given Perez’s criminal record, current drug deals, and inability to learn from prior
periods of incarceration. Fairly understood, the judge’s statements demonstrate
agreement with Perez’s guidelines range, not a belief that in all situations the sentence
imposed should presumptively fall within the guidelines range. There was thus no
error on this basis.
No. 13-2446 Page 4
Mitigating Arguments. Perez also urges that the district court failed to consider
his principal arguments in mitigation: that his career-offender status overstates his
criminal history given the “remoteness of his predicate offenses,” and that the
recommended range yielded an imprisonment range greater than necessary, in conflict
with the parsimony rule of § 3553(a), given his status as a lowly “street level” dealer.
We agree with the government, however, that the second of these points was not
properly preserved. In the passage from the sentencing hearing transcript to which we
are now referred on this point, defense counsel said, “Judge that is the context of the
personal characteristics of defendant under 3553(a), which contradict the notion that
15.6 years is necessary to either protect society or reform this individual or deter him in
the future or to deter others.” This was not enough to alert the judge to an effort to raise
Perez’s argument on appeal—that sentencing a “street level” dealer as a career offender
is not appropriate. District judges cannot be expected to address a lawyer’s running
commentary that only later, in an appellate brief, begins to look like a focused argument
in mitigation. See United States v. Cheek, 740 F.3d 440, 455 (7th Cir. 2014); United States v.
Donelli, 747 F.3d 936, 940 (7th Cir. 2014); United States v. Jackson, 547 F.3d 786, 795–96
(7th Cir. 2008).
Perez’s other argument—that the convictions making him a career offender were
remote—is either unexplained or unpersuasive (or both). Perez had qualifying and
countable convictions for crimes committed in 1995, 1997, and 2000. From 1995 through
February 2005 he was either facing pending charges, incarcerated, or under court
supervision. By 2008 he and others in his gang were under investigation by the Chicago
Police Department. We see no reason why the district court erred in rejecting the idea
that these predicate convictions were unacceptably remote. The court concluded that
Perez had “earned his career criminal status whether it was long ago or more recent and
whether the deals were small.” A career-offender sentence was appropriate, it thought,
because Perez had several chances to change his life but did not learn anything from
past incarceration and continued to reoffend. This explanation was reasonable and
sufficiently detailed; Perez is not entitled to relief on this ground. See United States v.
Chapman, 694 F.3d 908, 914 (7th Cir. 2012); United States v. Gary, 613 F.3d 706, 709 (7th
Cir. 2010).
Inaccurate Information. The argument that Perez’s counsel stressed at oral
argument, and the one that gives us the greatest concern, relates to the accuracy of the
information on which the court relied. At one key point, the court stated that Perez was
prepared to “Sell drugs, sell crack and sell guns” during the offense of conviction. In
fact, the April 2010 transaction involved only one gun that was thrown into the deal at
the express request of the informant. (We note that Perez’s criminal background is
devoid of weapons offenses.) Perez argues that the circumstances here are akin those in
United States v. Durham, 645 F.3d 883, 899–900 (7th Cir. 2011), where resentencing was
No. 13-2446 Page 5
necessary when the sentencing court commented that the defendant’s “prior
involvement in violent offenses, with drugs and guns” factored into its sentence (even
though the defendant had no prior history with offenses involving firearms).
We think that Perez has a good point. It is true that nothing in the record
suggests that Perez placed a limit on the number of guns he would sell if he had more
than one, or that he would not have sold the informant multiple guns if the informant
had asked for them. But nothing supports the idea that Perez had a habit of selling guns
either. The judge’s use of the plural “guns” might have been harmless, if the record had
otherwise reflected his awareness that Perez’s criminal record did not include any gun
offenses or that the judge was taking into account the accurate details of the April 2010
deal, but it does not. To the contrary, the judge described Perez as one of the worst of
the worst, observing that he did “not get too many cases with this heavy a
background.” We find this hard to believe. Without the career-offender enhancement,
Perez’s criminal-history category was IV, reflecting nine points. His criminal history
consisted of a number of low-level convictions for distribution of drugs, committed
while he was addicted to heroin. The district court judge here has presided over drug
conspiracies involving thousands of kilograms of cocaine, see, e.g., United States v. Ward,
211 F.3d 356 (7th Cir. 2000), and so we can only assume that his statement in Perez’s
case was hyperbole.
Perez also argues that the district court based his career-offender status on an
inaccurate assessment of his prior drug convictions. After the prosecutor described
Perez as having “multiple serious drug convictions in the past,” the court commented
that the prosecutor “has those facts right.” Technically speaking, this may have been
accurate. Perez has two prior convictions for delivery of a controlled substance, one for a
sale of $50 worth of crack in 1995 and the other for a sale in 1996. Initially, Perez was
sentenced on the same day to probation for both crimes, but after he violated the
conditions of his probation, he was sentenced to seven years for the 1995 drug offense.
His sentence for the 1996 offense was unaffected. This was enough, however, to make
the 1995 offense recent enough to incur criminal history points, and only crimes that
incur points count for career-offender status. See U.S.S.G. §§ 4A1.1(a), 4A1.2(e), (k),
4B1.2(c). The prosecutor commented that Perez had “earned his ‘career offender’ status”
because of his prior convictions without delving into the details of which convictions
counted and which did not. We cannot tell if the district court’s later comment,
endorsing the prosecutor’s statement, was supposed to mean that Perez had “earned”
the career-offender status because of a horrendous record, or if it meant only that the
probation service had accurately applied the guidelines. If the former, then it is unclear
to us why this was the court’s assessment of Perez’s unfortunately common
background. If the latter, then it does not help us understand why the court rejected
Perez’s argument that the guidelines overstated the significance of his criminal history.
No. 13-2446 Page 6
Explanation for Sentence. That last point leads us to Perez’s complaint that the
district court did not explain its choice of the 188-month sentence adequately.
Principally for the reasons we have already given, we agree with that criticism. The
court did properly take into account a number of the factors mentioned in § 3553(a),
including Perez’s difficult upbringing with an absent father and drug-addicted mother,
and the fact that he was now a father himself. The court also considered Perez’s prior
incarcerations, noting that none had given rise to any appreciable deterrent effect. But
the court did not indicate that it was aware that the time Perez actually had served for
his five-year and seven-year sentences was quite low—two and a half years and three
years respectively. Escalating from that level to more than 15 years is a major step. We
do not rule out the possibility that it could be justified, but we cannot find the
justification in this record.
We VACATE Perez’s sentence and REMAND for re-sentencing in accordance with
this order.