United States v. Victor Sainz-Preciado

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3706
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
V ICTOR S AINZ-P RECIADO,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 CR 381—Ronald A. Guzman, Judge.
A RGUED D ECEMBER 11, 2008—D ECIDED M AY 27,2009
Before M ANION, E VANS, and T INDER, Circuit Judges.
T INDER, Circuit Judge. Victor Sainz-Preciado pleaded
guilty to conspiracy and attempt to distribute more than
5 kg of cocaine, but the district court found that he was
responsible for more than 150 kg of cocaine for sentencing
purposes and imposed a 262-month sentence. On appeal,
Sainz-Preciado challenges the district court’s drug quantity
finding and application of the United States Sentencing
Guidelines. Finding no error in the court’s sentencing
determinations, we affirm Sainz-Preciado’s sentence.
2 No. 07-3706
I. Background
Sainz-Preciado and Juan Jose Mena-Aguayo participated
in an operation to distribute cocaine imported from
Mexico across the United States. Mena-Aguayo would
pick up cocaine shipments that arrived in Los Angeles and
drive them to Chicago, where Sainz-Preciado would
accept delivery. The two men agreed to make one such
delivery in April 2004. In Los Angeles, Mena-Aguayo
loaded 20 kg of cocaine into a secret compartment of
his SUV and began the drive to Chicago. He made it as far
as Iowa, where, on April 9, state police pulled him over
and discovered the drugs. When questioned by the state
police, Mena-Aguayo confessed that he had made
similar cocaine deliveries to Sainz-Preciado in Chicago
on two prior occasions. However, after the state police
turned him over to the Drug Enforcement Agency
(“DEA”), Mena-Aguayo changed his story, telling federal
agents that he had made nine prior deliveries to Sainz-
Preciado.
The DEA enlisted Mena-Aguayo’s help to catch Sainz-
Preciado in a controlled drug delivery, instructing Mena-
Aguayo to contact Sainz-Preciado as though he had
arrived in Chicago without incident. On April 10, in a
series of recorded conversations, Mena-Aguayo con-
tacted Sainz-Preciado and arranged to deliver the 20 kg
of cocaine that he had brought from Los Angeles. During
these conversations, the men were able to communicate
their whereabouts and plan the logistics of the delivery
using short, nondescript terms, apparently a code. For
example, in his initial phone call to Sainz-Preciado, Mena-
No. 07-3706 3
Aguayo stated that he had arrived at “the house,” and
Mena-Aguayo told Sainz-Preciado that he would meet
him “at the seafood.” Shortly after this call, both Sainz-
Preciado and Mena-Aguayo traveled separately to a
nearby Mexican seafood restaurant where they had
also met during prior drug transactions.
Upon arriving at the restaurant, Sainz-Preciado ex-
pressed surprise that Mena-Aguayo had brought “only 20”
kg of cocaine, implying that this amount was lower than
previous shipments. Sainz-Preciado then stated that he
would send his “buddy” to complete the transaction,
which Mena-Aguayo understood to mean that one of
Sainz-Preciado’s associates would arrive and take
physical delivery of the cocaine. Sainz-Preciado told Mena-
Aguayo to wait at the house while he left and contacted
his “guy” to collect the drugs.
Shortly after the men left the restaurant, Sainz-Preciado
called Mena-Aguayo and said that they needed to change
their delivery plans, as Sainz-Preciado feared that the
police were following him. Sainz-Preciado told Mena-
Aguayo to meet him “over here” where they had “bought
the tapes,” which Mena-Aguayo recognized as a
Walgreens store where the men had bought duct tape
to wrap the money collected from a previous drug deal.
Sainz-Preciado’s fears were, of course, justified, as
federal agents were monitoring his conversations with
Mena-Agauyo and tracking his movements. After Mena-
Aguayo met Sainz-Preciado at the Walgreens parking lot
and drove him into downtown Chicago, agents arrested
Sainz-Preciado.
4 No. 07-3706
On June 8, 2005, Sainz-Preciado pleaded guilty to con-
spiracy under 21 U.S.C. § 846 to distribute more than 5 kg
of cocaine, in violation of 21 U.S.C. § 841(a)(1), and at-
tempted possession with intent to distribute more than
5 kg of cocaine, in violation of 21 U.S.C. § 846 and 18 U.S.C.
§ 2. Prior to sentencing, Sainz-Preciado submitted his
“Version of Facts,” in which he claimed that he had
participated in only two drug deliveries with Mena-
Aguayo, including the April 2004 transaction that led to
his arrest. Sainz-Preciado also claimed that he was a
mere underling in the drug operation, taking his instruc-
tions from Victor Ley, Mena-Aguayo’s brother-in-law.
According to Sainz-Preciado, Ley called Sainz-Preciado
from Mexico and told him when Mena-Aguayo would
make a cocaine delivery, how to meet Mena-Aguayo
in Chicago, and who to call to take physical delivery of
the drugs. Sainz-Preciado also claimed that immigration
officials sent him back to Mexico following his March 31,
2003 arrest for illegal entry, meaning that he could not
have accepted deliveries from Mena-Aguayo from that
date until August 2003, when he made his way back
to Chicago.
At his August 7, 2007 sentencing hearing, Sainz-Preciado
declined to testify in support of his version of facts. Mena-
Aguayo, on the other hand, did testify for the govern-
ment and told a story that conflicted with Sainz-
Preciado’s version. Consistent with his confession to
DEA agents, Mena-Aguayo testified that he made a total
of ten cocaine deliveries to Sainz-Preciado between
March 2003 and April 2004, including the final, controlled
delivery. During each of these transactions, Sainz-Preciado
No. 07-3706 5
paid Mena-Aguayo $400,000 to $600,000 for 20 to 34 kg
of cocaine. Mena-Aguayo further testified that Sainz-
Preciado never accepted the shipment personally but, as
with the April 10, 2004 transaction, called various associ-
ates to pick up the drugs. As for Victor Ley’s purported
control over the Chicago operation, Mena-Aguayo ac-
knowledged that he worked for Ley and that Sainz-
Preciado was speaking to Ley on the phone throughout
the controlled delivery. However, Mena-Aguayo also
stated that Ley had nothing to do with the details of
picking up the drug shipments that arrived in Chicago.
To show that Sainz-Preciado and Mena-Aguayo had
developed a regular course of conduct for the cocaine
shipments, the government introduced the transcripts of
the April 10, 2004 conversations between the two men.
Referring to the transcripts, Mena-Aguayo explained that
he and Sainz-Preciado quickly recognized terms like
“house” and “seafood” because they had established
common meeting places from their nine prior drug deals.
They had also developed common delivery procedures;
by simply promising to “take care of things,” Sainz-
Preciado was able to communicate to Mena-Aguayo that
he was summoning his associates to pick up the drugs.
Faced with Sainz-Preciado’s and Mena-Aguayo’s con-
flicting claims regarding the number of drug deals, the
district court chose to credit Mena-Aguayo’s testimony
and concluded that Sainz-Preciado participated in nine
or ten cocaine deliveries between 2003 and 2004. The
court found Mena-Aguayo to be a convincing witness,
noting that he testified against penal interest by ad-
6 No. 07-3706
mitting his own involvement in the multiple drug deliver-
ies. Based on nine or ten shipments each involving 20 kg
or more of cocaine, the court determined that the drug
quantity attributable to Sainz-Preciado for sentencing
purposes was more than 150 kg of cocaine. Under the
United States Sentencing Guidelines, that quantity
resulted in a base offense level of 38. U.S. Sentencing
Comm’n, Guidelines Manual § 2D1.1(c)(1) (2004).
The court also concluded that Sainz-Preciado exercised
managerial control over at least two associates, as he
instructed these individuals when and where to take
delivery of the cocaine shipments. In light of that
finding, the court added three levels to Sainz-Preciado’s
offense level for his role as a “manager or supervisor” of
the criminal activity. U.S.S.G. § 3B1.1(b). Correspondingly,
the court rejected Sainz-Preciado’s request for a two-
level “safety valve” reduction in his offense level, which
is available for only those drug offenders who (among
other things) do not act as a “manager” or “supervisor” in
the offense. U.S.S.G. § 5C1.2(a)(4); see also id. § 2D1.1(b)(7)1
(providing a two-level deduction for defendants who
meet the criteria of § 5C1.2(a)). Finally, because Sainz-
Preciado pleaded guilty to the charged offenses, the court
1
Under the most recent 2008 edition of the Guidelines, this
cross-reference to § 5C1.2(a) appears in § 2D1.1(b)(11), not
§ 2D1.1(b)(7). This opinion cites Guidelines section numbers
as they appeared in the 2004 edition under which Sainz-
Preciado was sentenced. With respect to all other applicable
Guidelines provisions, the 2004 and 2008 editions contain
no differences in section numbers.
No. 07-3706 7
granted a two-level reduction under § 3E1.1(a) of the
Guidelines for acceptance of responsibility. The govern-
ment did not request an additional one-level reduction
under § 3E1.1(b), and Sainz-Preciado did not contest
the government’s failure to do so.
The resulting total offense level of 39, along with Sainz-
Preciado’s category I criminal history, yielded an advisory
Guidelines sentencing range of 262-327 months. The
district court, acknowledging Sainz-Preciado’s lack of
criminal history but emphasizing the seriousness of
distributing such large quantities of cocaine, imposed
minimum-Guidelines sentences of 262 months for both
the conspiracy and attempted possession offenses, to
run concurrently.
On appeal, Sainz-Preciado challenges the district
court’s findings that he was responsible for more than
150 kg of cocaine and that he qualified as a manager of the
drug operation. Sainz-Preciado also claims that he was
entitled to a two-level “safety valve” reduction under
§ 5C1.2(a) and an additional one-level reduction for
acceptance of responsibility under § 3E1.1(b). Finally,
Sainz-Preciado argues that his 262-month sentence is
unreasonable.
II. Analysis
A. Drug Quantity Finding
After crediting Mena-Aguayo’s testimony that Sainz-
Preciado participated in ten drug deliveries, the district
court determined that Sainz-Preciado’s “relevant conduct”
8 No. 07-3706
for sentencing purposes, U.S.S.G. § 1B1.3(a)(1), included
the distribution of more than 150 kg of cocaine. We
review the district court’s finding as to drug quantity
for sentencing purposes for clear error. United States v.
Romero, 469 F.3d 1139, 1147 (7th Cir. 2006), vacated on
other grounds, 128 S. Ct. 858 (2007) (mem.).
The district court had to choose between Mena-Aguayo’s
story that he made ten cocaine deliveries and Sainz-
Preciado’s story that he accepted only two deliveries.
Given these “two permissible views of the evidence,” the
court’s choice to credit Mena-Aguayo’s testimony is not
clearly erroneous. United States v. Hatten-Lubick, 525 F.3d
575, 580 (7th Cir. 2008). The court simply found that Mena-
Aguayo’s testimony was more credible than Sainz-
Preciado’s uncorroborated version of facts, and that
credibility finding is entitled to our “great, although
not absolute, deference.” United States v. Fox, 548 F.3d 523,
529 (7th Cir. 2008). Further, the court appropriately relied
on the fact that Mena-Aguayo testified against penal
interest by admitting to his own participation in the ten
drug deliveries. See United States v. Mancillas, 183 F.3d
682, 710 (7th Cir. 1999) (upholding a determination
that the witness was credible based in part on the wit-
ness’s self-inculpatory testimony). The government also
corroborated Mena-Aguayo’s testimony with the
recorded April 10, 2004 conversations between Sainz-
Preciado and Mena-Aguayo. See Romero, 469 F.3d at 1148(noting that a DEA agent’s testimony corroborated a co-
defendant’s testimony on his drug dealings with the
defendant); United States v. Hankton, 432 F.3d 779, 792 (7th
Cir. 2005) (finding that co-defendants’ plea agreements
No. 07-3706 9
establishing the defendant’s involvement in multiple
drug transactions were fully corroborated by an FBI
agent’s testimony). This evidence demonstrated that the
two men had developed simple, shorthand, coded terms
to refer to common meeting places and delivery proce-
dures, implying a longstanding pattern and relationship.
Sainz-Preciado argues that Mena-Aguayo’s testimony
lacked sufficient corroboration, such as evidence re-
garding the disposition of the $200,000 that Mena-Aguayo
supposedly earned from his ten deliveries or hotel
receipts from his ten road trips to Chicago. However, this
purported lack of corroboration did not prevent the
district court from crediting Mena-Agauyo’s testimony,
especially since that testimony was in fact significantly
corroborated by the recorded conversations between Sainz-
Preciado and Mena-Aguayo. See United States v. Johnson,
489 F.3d 794, 798 (7th Cir. 2007). Rather than simply
listing ways that the government could have more fully
corroborated Mena-Aguayo’s testimony, Sainz-Preciado
“must present evidence which would in some way rebut
that testimony or demonstrate that is inaccurate” in
order to show that the district court erred. Hankton, 432
F.3d at 793. He failed to do so.
Sainz-Preciado also points to his March 31, 2003 arrest
for illegal entry and alleged removal to Mexico, claiming
that he was out of Chicago from that time until
August 2003 and therefore incapable of accepting de-
liveries from Mena-Aguayo. Even assuming that immigra-
tion officials actually removed Sainz-Preciado from the
United States (the record does not establish this fact), his
10 No. 07-3706
April-August 2003 absence is not necessarily inconsistent
with Mena-Aguayo’s testimony that he accepted ten
cocaine deliveries at various times between March 2003
and April 2004.
To be sure, Mena-Aguayo was not unimpeachable, as he
under-reported his drug distribution history to the Iowa
police following his arrest (an inaccuracy that defense
counsel highlighted in his cross-examination of Mena-
Aguayo). Nonetheless, a district court may credit testi-
mony that is “totally uncorroborated and comes from an
admitted liar, convicted felon, or large scale drug-dealing
paid government informant.” Johnson, 489 F.3d at 797(quoting Romero, 469 F.3d at 1147). In sum, then, faced
with Mena-Aguayo’s sworn, unrebutted testimony and
Sainz-Preciado’s unsworn, uncorroborated version of
facts, the district court did not clearly err in crediting
Mena-Aguayo’s testimony and holding Sainz-Preciado
responsible for nine or ten cocaine deliveries.
B. Enhancement for Managerial Role
Under U.S.S.G. § 3B1.1(b)
Sainz-Preciado next challenges the district court’s
application of a three-level enhancement under U.S.S.G.
§ 3B1.1(b) for his role as a manager in the offense. Like
findings of drug quantity, we review the district court’s
finding that the defendant exercised a managerial role
for clear error. United States v. Howell, 527 F.3d 646, 649
(7th Cir. 2008).
Under § 3B1.1 of the Guidelines, a defendant receives a
four-level enhancement for participation as an “organizer
No. 07-3706 11
or leader” of a criminal activity “that involved five or
more participants or was otherwise extensive,” and a three-
level enhancement for participation as a “manager or
supervisor” of such a criminal activity. U.S.S.G. § 3B1.1.
The district court determined that Sainz-Preciado was
subject to a three-level enhancement as a “manager or
supervisor” because he controlled at least two
individuals who took physical delivery of the cocaine
shipments.
The district court’s application of § 3B1.1 finds sufficient
support in Mena-Aguayo’s testimony that Sainz-Preciado,
rather than accepting the cocaine shipments personally,
directed his associates to pick up the drugs. We have
recognized that a drug dealer’s delegation of delivery
or payment tasks may warrant the imposition of a § 3B1.1
enhancement. See Fox, 548 F.3d at 529-30 (upholding a
§ 3B1.1 enhancement for a defendant who arranged the
time and location of a drug sale but directed a subordinate
to make actual delivery); United States v. Martinez, 520
F.3d 749, 752 (7th Cir. 2008) (finding no error in classifying
as a manager a defendant who hired individuals to trans-
port and accept substantial drug shipments); Johnson,
489 F.3d at 796, 798-99 (upholding a § 3B1.1 enhancement
for a defendant-seller who dispatched subordinates to
deliver drugs and collect payments). Accordingly, the
district court did not clearly err in concluding that Sainz-
Preciado’s use of “runners” to take actual possession of
the cocaine after he finalized the logistics of the delivery
made him a manager of the criminal activity. See Hatten-
Lubick, 525 F.3d at 580-81.
12 No. 07-3706
Sainz-Preciado argues that the district court erred in
finding that he controlled the drug runners because it
was Victor Ley, the leader of the entire drug operation,
who instructed him on who to call to pick up the cocaine.
According to Sainz-Preciado, the court’s § 3B1.1(b) en-
hancement lacks any evidentiary basis because the
only relevant government evidence, Mena-Aguayo’s
testimony, was not inconsistent with Sainz-Preciado’s
claim that Ley controlled his activities from Mexico.
First, Sainz-Preciado mischaracterizes Mena-Aguayo’s
testimony by suggesting that it was fully consistent with
Sainz-Preciado’s claim that Ley controlled the Chicago
drug deliveries. While Mena-Aguayo acknowledged that
Ley was a leader of the drug operation, he also testified
that Sainz-Preciado was “doing his thing” out in Chicago
and that Ley had “nothing to do” with the drug pickups.
Further, even if Mena-Aguayo’s testimony did not
directly contradict Sainz-Preciado’s claim that Ley con-
trolled his activities, it unquestionably contradicted Sainz-
Preciado’s claim that he participated in only two cocaine
shipments. So by crediting Mena-Aguayo’s testimony,
the district court necessarily found that Sainz-Preciado
was a liar with respect to the critical question of how
many drug deliveries the two men completed. Having
discredited such an important part of Sainz-Preciado’s
version of facts, the court was free to discount Sainz-
Preciado’s version in its entirety. Finally, assuming that
Ley did in fact tell Sainz-Preciado who to call to pick up
the cocaine, Sainz-Preciado’s resulting status as a mere
middleman would not make him “immune from applica-
tion of § 3B1.1.” Howell, 527 F.3d at 649 (quoting United
No. 07-3706 13
States v. Brown, 944 F.2d 1377, 1381 (7th Cir. 1991)). It is
Sainz-Preciado’s “relative responsibility and control over
other participants” that qualifies him as a manager, id.,and the evidence shows that Sainz-Preciado coordinated
the activities of Mena-Aguayo and the drug runners. The
district court did not clearly err in applying a § 3B1.1(b)
enhancement for Sainz-Preciado’s role as a manager.
In affirming the district court’s managerial control
finding, we necessarily reject Sainz-Preciado’s argument
that the court erred in denying his request for a two-level
“safety-valve” reduction. U.S.S.G. §§ 2D1.1(b)(7), 5C1.2(a).
Since one criterion for safety-valve relief is that the defen-
dant was not a “manager” or “supervisor” in the offense,
id. § 5C1.2(a)(4), Sainz-Preciado’s § 5C1.2 argument fails
along with his § 3B1.1 argument. Moreover, since the
district court found that Sainz-Preciado falsely claimed
that he participated in only two drug deliveries, Sainz-
Preciado fails § 5C1.2(a)’s additional requirement that
he truthfully provide the government with “all informa-
tion” concerning his offense conduct. U.S.S.G. § 5C1.2(a)(5).
C. Acceptance of Responsibility Under
U.S.S.G. § 3E1.1(b)
Sainz-Preciado also claims that, in addition to the two-
level reduction in his offense level that he received
under § 3E1.1(a) for acceptance of responsibility, he
should have received an additional one-level reduction
under § 3E1.1(b). The latter subsection directs the dis-
trict court to decrease the defendant’s offense level an
additional level:
14 No. 07-3706
upon motion of the government stating that the
defendant has assisted authorities in the investiga-
tion or prosecution of his own misconduct by
timely notifying authorities of his intention to
enter a plea of guilty, thereby permitting the
government to avoid preparing for trial and per-
mitting the government and the court to allocate
their resources efficiently . . . .
U.S.S.G. § 3E1.1(b). The critical problem with Sainz-
Preciado’s § 3E1.1(b) claim is that the government never
made a motion for a third-point reduction. We, along
with every other circuit to consider the issue, have
held that the government motion is a necessary prerequi-
site to a § 3E1.1(b) reduction. United States v. Pacheco-Diaz,
506 F.3d 545, 552 (7th Cir. 2007) (“[T]he district court may
not grant the third level reduction for acceptance of
responsibility absent a motion by the government.”). That
rule reflects a 2003 congressional amendment to § 3E1.1(b)
that added the “upon motion of the government” lan-
guage, indicating Congress’s intent to leave third-point
reductions to the government’s discretion. Prosecutorial
Remedies and Tools Against the Exploitation of Children
Today (“PROTECT”) Act of 2003, Pub. L. No. 108-21,
§ 401(g)(1)(A), 117 Stat. 650, 671 (2003); see also United
States v. Beatty, 538 F.3d 8, 13-14 (1st Cir. 2008) (discussing
the 2003 amendment and joining every other circuit to
hold that a reduction under the amended version of
§ 3E1.1(b) is contingent on the government’s motion).
Sainz-Preciado suggests that the government’s failure
to move for a third-point reduction in this case was a
No. 07-3706 15
mere oversight, resulting in part from Sainz-Preciado’s
own failure to explicitly request a § 3E1.1(b) motion in
the proceedings below. We disagree. As the government
forcefully argues on appeal, it declined to move for a third-
point reduction because Sainz-Preciado never fully ac-
cepted responsibility by admitting his involvement in all
ten drug transactions. So while Sainz-Preciado’s early
guilty plea spared the expense of a trial, the govern-
ment still had to prepare Mena-Aguayo’s testimony and
other evidence to prove the full scope of Sainz-Preciado’s
criminal conduct at the sentencing hearing. This added
burden to both the government and the court system
gave the government good reason (if it needed one) not
to file a § 3E1.1(b) motion.
D. The Reasonableness of Sainz-Preciado’s Sentence
Finally, Sainz-Preciado argues that his sentence is
unreasonable because the district court failed to meaning-
fully consider the sentencing factors of 18 U.S.C. § 3553(a).
We review the reasonableness of a sentence under an
abuse of discretion standard. United States v. Shannon,
518 F.3d 494, 496 (7th Cir. 2008). The district court abuses
its discretion by “failing to consider the § 3553(a) factors”
when selecting a sentence. Gall v. United States, 128 S. Ct.
586, 597 (2007). However, the court need not “discuss and
make findings as to each of these factors,” as long as “the
record confirms meaningful consideration of the types
of factors that section 3553(a) identifies.” United States v.
Laufle, 433 F.3d 981, 987 (7th Cir. 2006); see also Shannon,
518 F.3d at 496 (“The court need not address every
16 No. 07-3706
§ 3553(a) factor in checklist fashion, explicitly articulating
its conclusions regarding each one.”).
The district court did not discuss the § 3553(a) factors
at Sainz-Preciado’s sentencing hearing. Nonetheless, the
reasons that the court gave in support of its sentencing
decision “reflect consideration of the types of factors
identified in section 3553(a).” Laufle, 433 F.3d at 987. The
court rejected defense counsel’s argument that Sainz-
Preciado was merely the pawn of drug lord Victor Ley,
concluding instead that Sainz-Preciado knowingly ac-
cepted the risks and monetary benefits of dealing in
large quantities of cocaine. See 18 U.S.C. § 3553(a)(1)
(directing sentencing courts to consider “the nature and
circumstances of the offense”). The court also seriously
considered the possibility of choosing a below-
Guidelines sentence based on Sainz-Preciado’s lack of
criminal history. See id. (“the history and characteristics
of the defendant”). Ultimately, however, the court felt
that it could not overlook Sainz-Preciado’s “continuing
effort to peddle large amounts of poison for large
amounts of money.” See id. § 3553(a)(2)(A) (the need for
the sentence “to reflect the seriousness of the offense”); id.
§ 3553(a)(2)(C) (the need for the sentence “to protect
the public from further crimes of the defendant”).
Because the court’s stated reasons for choosing Sainz-
Preciado’s sentence reflect a meaningful consideration of
the § 3553(a) factors, the sentence is reasonable notwith-
standing the court’s failure to explicitly discuss those
factors. That is especially true since the 262-month sentence
selected by the court was at the low end of Sainz-
No. 07-3706 17
Preciado’s 262-327 month advisory Guidelines range;
sentences that fall within the Guidelines range receive
an appellate presumption of reasonableness. Laufle,
433 F.3d at 987. Sainz-Preciado has not rebutted this
presumption by pointing to specific, substantial sen-
tencing arguments that the district court failed to
address, and he cannot rely on the simple declaration
that “the court did not address any of the § 3553(a) fac-
tors.” Martinez, 520 F.3d at 753.
Conclusion
For the foregoing reasons, we A FFIRM Sainz-Preciado’s
sentence.
5-27-09