United States v. Marcos Castaneda

In the
United States Court of Appeals
For the Seventh Circuit
No. 18-1541
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MARCOS CASTANEDA,
Defendant-Appellant.
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:17-cr-00038-jdp-1 — James D. Peterson, Chief Judge.
ARGUED OCTOBER 2, 2018 — DECIDED OCTOBER 19, 2018
Before BAUER, KANNE, and SCUDDER, Circuit Judges.
BAUER, Circuit Judge. Marcos Castaneda pleaded guilty to
transporting methamphetamine as part of a 20-person con-
spiracy. Though the district court sentenced his coconspira-
tors based on findings that they distributed mixtures contain-
ing methamphetamine, it sentenced Castaneda based on his
handling of a smaller quantity of “Ice,” or especially pure (at
least 80%) methamphetamine. Pound for pound, the Sentenc-
ing Guidelines recommend punishing Ice-related crimes
2 No. 18-1541
more severely than crimes involving less-pure methampheta-
mine. The court also denied Castaneda a Guidelines reduc-
tion for acceptance of responsibility, given his unwillingness
to admit to the apparent scope of his involvement in the con-
spiracy. Castaneda challenges both rulings. We affirm his 20-
year prison sentence.
I. Background
Castaneda supplied methamphetamine as part of a con-
spiracy run by Joseph Kujawa. According to Kujawa, Cas-
taneda transported 15 to 20 pounds per month of pure meth-
amphetamine from California to Minnesota for one year,
providing 5 pounds per month directly to Kujawa. Other co-
conspirators, bank statements, and flight and rental-car rec-
ords corroborate Kujawa’s story. In February 2016, one pound
of methamphetamine was seized from coconspirator Jamie
Pankow; testing revealed that it was 100% pure.
Castaneda admits that he personally transported six
pounds of methamphetamine, but he maintained at sentenc-
ing that he otherwise transported only marijuana. He insisted,
at odds with Kujawa’s statements, that he did not know that
any packages he delivered contained methamphetamine un-
til, near the end of his involvement, a coconspirator accused
him of tampering with them. In total, Castaneda testified that
he transported just six one-pound packages of methampheta-
mine and delivered all of them to someone other than
Kujawa.
Castaneda was the twentieth and final conspirator to be
sentenced. The district court expressly pinned his coconspira-
tors’ offense levels on their involvement with various
No. 18-1541 3
quantities of a mixture or substance containing methamphet-
amine, but Castaneda’s sentencing went differently. For his
base offense level, the court entertained his insistence that he
personally transported no more than six pounds of metham-
phetamine—but found that this conduct involved nearly
three kilograms of Ice, rather than a mere mixture or sub-
stance containing methamphetamine. This was more than the
1.5 kilograms of Ice necessary for a level of 36. See U.S.S.G.
§ 2D1.1(c)(2).
At the same time, the court found that Castaneda did not
qualify for a downward adjustment for accepting responsibil-
ity under § 3E1.1, precisely because he asserted that he trans-
ported methamphetamine only occasionally—an assertion
that the court determined was implausible in light of the other
evidence.
After further adjustments, the court concluded that Cas-
taneda had a total offense level of 39, which, with a criminal
history category of II, resulted in a Guidelines range of 292 to
356 months’ imprisonment. See U.S.S.G. Ch. 5, Pt. A. The
court then noted that Castaneda’s conduct was “more or less
in parity” with Kujawa’s, but that Kujawa had accepted re-
sponsibility and cooperated with the government. To avoid
unwarranted disparities between Castaneda and his cocon-
spirators, the court sentenced Castaneda to 20 years’ impris-
onment: 2 years more than Kujawa’s term, but 52 months be-
low Castaneda’s Guidelines range.
II. Analysis
Castaneda first contends that the district court erred by
basing his sentencing range on a drug substance (Ice)
4 No. 18-1541
inconsistent with that used to calculate his coconspirators’
ranges: had the judge determined that Castaneda’s conduct,
like that of his coconspirators, involved a mixture or sub-
stance containing methamphetamine, the result would be a
lower base offense level. This argument assumes, of course,
that Castaneda’s drug quantity should remain less than the 15-
kilogram amount that triggers a level of 36 for mixture-or-
substance crimes.
Because Castaneda did not raise this concern about his co-
conspirators at sentencing, our review is for plain error. See
Molina-Martinez v. United States, 136 S. Ct. 1338, 1342–43
(2016); FED. R. CRIM. P. 52. Remand is warranted only if the
district court’s error is clear and affected Castaneda’s substan-
tial rights, and if it “seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Molina-Martinez,
136 S. Ct. at 1343. Typically, an error affects a defendant’s sub-
stantial rights if it is reasonably probable that, but for the er-
ror, the outcome of the proceeding would have been different.
United States v. Dominguez Benitez, 542 U.S. 74, 81–82 (2004).
And the Supreme Court has recently stressed that in the typ-
ical case, straightforward errors in calculating the Guidelines
range will amount to plain error. Rosales-Mireles v. United
States, 138 S. Ct. 1897, 1903 (2018). But there is no
straightforward error here.
To start, the evidence, viewed apart from the base offense
levels of Castaneda’s coconspirators, suffices to support the
district court’s finding of more than 1.5 kilograms of Ice. We
start with the quantity. Kujawa testified that from May 2015
to May 2016, Castaneda brought 15 pounds of methampheta-
mine per month to Minnesota and fronted 5 pounds per
No. 18-1541 5
month to Kujawa. Seven other witnesses (including Cas-
taneda’s drivers and some coconspirators), bank statements,
and travel records corroborated Kujawa’s version. Even Cas-
taneda admits that he personally transported 6 pounds of
methamphetamine—i.e., 2.72 kilograms.
The drug-substance finding of Ice likewise finds support
in the evidence. For instance, the pound of methamphetamine
seized from a coconspirator was 100% pure. Meanwhile,
Kujawa testified under oath that Castaneda delivered meth-
amphetamine in crystal form that looked like glass “shards,”
while bragging about the methamphetamine’s purity: “[i]t’s
the best stuff you can get. It’s uncut.” Two other coconspira-
tors confirmed that Castaneda delivered methamphetamine
that looked like “glass shards,” a hallmark of the drug’s pu-
rity. Thus, the evidence permits an extrapolated finding that
Castaneda is responsible for at least 1.5 kilograms of Ice.
But, says Castaneda, context—specifically, a district
court’s treatment of coconspirators—matters at sentencing.
And we have said that a district court may err when, without
justification, it finds that one coconspirator is responsible for
a greater quantity of a particular drug than his fellow con-
spirators. See United States v. Barnes, 602 F.3d 790, 796–97 (7th
Cir. 2010); United States v. Taylor, 600 F.3d 863, 871–72 (7th Cir.
2010). By analogy, Castaneda reasons, it is unfair to hold him
responsible for a more-penalized substance than his cocon-
spirators—even if the evidence, viewed in isolation, would
otherwise support a finding that the drug Castaneda handled
was Ice.
Yet Castaneda, unlike the defendant in Barnes, was not
found responsible for a greater quantity of drugs than most
6 No. 18-1541
of his coconspirators. While the court confined Castaneda’s
relevant conduct to 3 kilograms of Ice, that amount of Ice pro-
duces the same base offense level (36) as “at least 15 kg but
less than 45 kg” of a mixture or substance containing meth-
amphetamine. See U.S.S.G. § 2D1.1(c)(2), Notes to Drug Quan-
tity Table, Note (A). And six conspirators received drug-
quantity findings at or above 15 kilograms of a mixture or
substance containing methamphetamine. For example, the
district court found Kujawa responsible for 58 kilograms, cor-
responding to a base offense level of 38. The district court
noted, too, that in the coconspirators’ cases, the record sup-
ported a “backup finding” that much of the substance in-
volved was Ice. But, given the large drug quantities for these
coconspirators, at their sentencing hearings the court did not
see a need to decide, once and for all, how much of it was Ice.
So, it was easy enough to evaluate these codefendants’
relevant conduct conservatively and still arrive at a base
offense level of 36. And regarding Castaneda, the court
opined, “I’d be inclined to believe that there is a
preponderance of the evidence that would support an
amount of ice that’s within that range for a level 36.” This is
equal to the base offense level of 36 for the conspiracy’s first-
tier wholesalers.
Indeed, the court found that Castaneda was the “pipeline”
of the drug operation and so was “more or less in parity” with
Kujawa, who received a base offense level of 38 for a drug
quantity of 58 kilograms of a mixture or substance containing
methamphetamine. At the other end of the spectrum, the
drug amount for a mere third-tier distributor in the
conspiracy was 5.5 kilograms of a mixture or substance
containing methamphetamine. Against that backdrop, it
would be odd
No. 18-1541 7
to find that Castaneda’s relevant conduct involved just three
kilograms of a mixture or substance containing methamphet-
amine.
In sum, Castaneda is not asking for equal treatment. In-
stead, he asks to be sentenced using the same drug substance
as his coconspirators, but with the benefit of a drug quantity
lower than the ones attributed to all but five of the second-
and third-tier street distributors. Barnes does not reach that
far. On these facts, the decision not to treat Castaneda identi-
cally with his coconspirators did not plainly make a difference
to his sentencing range or impair the fairness or integrity of
the proceedings. See Dominguez Benitez, 542 U.S. at 82–83.
Next, Castaneda contends that the district court acted in-
consistently in denying him a reduction for acceptance of re-
sponsibility. Specifically, the finding that his relevant conduct
involved 3 kilograms of Ice was in tension with the finding
that Castaneda supplied the Kujawa conspiracy—which, after
all, distributed more than 58 kilograms of methamphetamine.
Given the small quantity that informed his base offense level,
he asks, how could he be held accountable for not admitting
to the large-scale version of the conspiracy described by
Kujawa?
This argument is mistaken. The district court found that
Castaneda’s relevant conduct “conservatively involved at least
3kg of ice” (emphasis added). And Castaneda admitted dis-
tributing, as the court saw it, “minimally, 3 kilograms of con-
trolled substance” (emphasis added). These findings set the
floor, not the ceiling, for how much methamphetamine Cas-
taneda might have supplied as part of the conspiracy. The
court’s willingness to pin Castaneda’s base offense level on a
8 No. 18-1541
minimum of 3 kilograms of methamphetamine is not neces-
sarily inconsistent with the possibility that Castaneda served
as the source of supply for the Kujawa conspiracy and pro-
vided more than he said. So, the district court’s findings were
not fatally inconsistent and do not constitute clear error.
A defendant is not entitled to the reduction under U.S.S.G.
§ 3E1.1 for acceptance of responsibility if he falsely denies or
frivolously contests relevant conduct that the district court
determines to be true. See id. at cmt. 1(a); United States v. Tay-
lor, 72 F.3d 533, 550 (7th Cir. 1995). It is the defendant’s burden
to show acceptance, see United States v. Smith, 860 F.3d 508, 516
(7th Cir. 2017), and here, Castaneda did not shoulder that bur-
den. He denied that he acted as the conspiracy’s source of
supply, claiming that he was an unwitting driver of drug
packages (content unknown) and did not realize he was mov-
ing methamphetamine until the last trip. Although the court’s
drug-quantity finding was not as severe as it could have been,
the court made plain that it did not credit Castaneda’s rela-
tively innocent portrayal of his overall role.
To be sure, Castaneda cites United States v. Eschman, 227
F.3d 886, 891 (7th Cir. 2000), where we found clear error in a
district court’s decision to deny any discount for acceptance
of responsibility when the defendant contested the drug
amount but otherwise showed remorse and did not actively
deny other relevant conduct. But in Eschman, only
pseudoephedrine (not methamphetamine) was seized, and
the district court’s extrapolation of the amount and purity
Eschman would have made from it was quite speculative. Id.
at 888–90. Here, by contrast, one pound of the substance
charged in the offense was seized and, upon testing, was
No. 18-1541 9
found to be 100% pure methamphetamine. Meanwhile, al-
though Kujawa’s narrative differed sharply from
Castaneda’s, it was corroborated by other sources. In light of
all the evidence and the district court’s findings, Castaneda
was not entitled to insist on a minimal role for himself while
still receiving credit for accepting responsibility.
For these reasons, the district court’s judgment is
AFFIRMED.