United States v. Vincente Ramirez-Men

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3314
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
V INCENTE R AMIREZ-M ENDOZA,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 10-Cr-175— Rudolph T. Randa, Judge.
A RGUED M ARCH 29, 2012—D ECIDED JUNE 8, 2012
Before K ANNE, R OVNER, and W ILLIAMS, Circuit Judges.
K ANNE, Circuit Judge. Facing charges of conspiracy
to kidnap, unlawful possession of a firearm in further-
ance of a crime of violence, and conspiracy to distribute
marijuana, Vincente Ramirez-Mendoza agreed to plead
guilty solely to the marijuana-conspiracy charge. The
district court sentenced Ramirez-Mendoza to 144 months’
imprisonment. Ramirez-M endoza now challenges
that sentence in part by arguing that the district
2 No. 11-3314
court insufficiently considered non-frivolous arguments
in mitigation. We agree and thus, remand for resentencing.
I. BACKGROUND
Vincente Ramirez-Mendoza was part of a large-scale
drug trafficking organization that distributed marijuana
in and around Chicago and Milwaukee. In April or May
2010, Roberto Vizcaino-Ortiz, a social acquaintance
of Ramirez-Mendoza, introduced him to Hector Vizcaino-
Ortiz, Roberto’s brother. Shortly after their initial meeting,
Ramirez-Mendoza agreed to act as a middleman
for marijuana transactions between Hector and Jose
Rodriguez, a marijuana supplier. That is, Ramirez-
Mendoza arranged for Hector to purchase marijuana
from Rodriguez on consignment for which Ramirez-
Mendoza was paid a token commission. This arrangement
continued until approximately August 2010, when Hector
stopped paying Rodriguez for previously purchased
marijuana. That missed payment amounted to somewhere
between $30,000 (Ramirez-Mendoza’s estimate) and
$75,000 (the presentence report’s (PSR) estimate).
Predictably, Rodriguez demanded payment, and accord-
ing to Ramirez-Mendoza, Rodriguez pressured him
to collect from Hector. When Ramirez-Mendoza’s calls
to Hector went unanswered, Rodriguez apparently sug-
gested that Ramirez-Mendoza call Roberto to demand
payment on Hector’s debt. Roberto answered Ramirez-
Mendoza’s calls but refused or was unable to bail out
his brother. Undeterred, Ramirez-Mendoza and perhaps
one or more associates visited Roberto at work four or
No. 11-3314 3
five times in hopes of tracking down Hector. Through
this all, Ramirez-Mendoza maintains that he only called
on Hector and Roberto because Rodriguez threatened
injury to Ramirez-Mendoza’s family if he failed to
help Rodriguez secure payment.
Rodriguez’s demands for payment came to a head
on August 27, 2010. That morning, two men assaulted
Roberto in Milwaukee, dragged him into a van, and
eventually transported him to a house on South Sacra-
mento Avenue in Chicago where he was bound to a
chair with duct tape and flex-cuffs. Roberto reported that
the kidnappers carried firearms during the ordeal
and shocked him with an electric cattle prod. Roberto’s
captors also forced him to make phone calls to family
members seeking the money his brother Hector owed
Rodriguez. Fortunately, Roberto escaped the next day.
A subsequent search of the Sacramento Avenue house
revealed a pair of boots, later identified as Roberto’s,
which were duct taped to the legs of a chair found in
the basement.
Although it is undisputed that Ramirez-Mendoza joined
the kidnappers on August 27, the government and
Ramirez-Mendoza disagree about his role in Roberto’s
kidnapping. Ramirez-Mendoza principally contends
that he was also held captive and tortured at the same
time as Roberto. To bolster his claim, Ramirez-Mendoza
points to a second chair found in the Sacramento Avenue
house that also contained remnants of duct tape— evidence
that supposedly proves that Ramirez-Mendoza was
forcibly restrained. Ramirez-Mendoza claims that his
4 No. 11-3314
cousin eventually freed him. The government, of course,
disputes Ramirez-Mendoza’s story and claims instead
that Ramirez-Mendoza played a role in the kidnapping.
As evidence, the government collected cell-phone tower
data, which shows that Ramirez-Mendoza’s phone — and
presumably Ramirez-Mendoza himself— traveled from
Chicago to Milwaukee on the morning of August 27,
and then back to Chicago (near the Sacramento Avenue
house) from Milwaukee later that same day. This itinerary
is consistent with the theory that Ramriez-Mendoza
traveled to Milwaukee to kidnap Roberto, and then
drove back to Chicago where Roberto was held captive.
And perhaps most importantly, the government points
out that Ramirez-Mendoza continued to lean on Roberto
and Roberto’s relatives for payment even after Roberto
escaped.
During the subsequent investigation, detectives re-
quested that Roberto place a recorded phone call to
Ramirez-Mendoza. Roberto asked Ramirez-Mendoza to
leave him alone and that it was not his obligation to pay
his brother’s debts. Ramirez-Mendoza responded that
“it’s not my doing” and “[i]t’s not coming from me
brother . . . you know what they did to me.” Ramirez-
Mendoza was arrested on September 8, 2010, for his role
in Roberto’s kidnapping and the Rodriguez marijuana-
distribution conspiracy.
On April 12, 2011, the government filed a second super-
seding indictment charging Ramirez-Mendoza with: (1)
conspiracy to commit kidnapping, in violation of 18 U.S.C.
§ 1201(a); (2) possession of a firearm in furtherance of
No. 11-3314 5
a crime of violence, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i); and (3) conspiracy to distribute 100
kilograms or more of marijuana, in violation of 21 U.S.C.
§§ 846 and 841(b)(1)(B). On June 23, Ramirez-Mendoza
pled guilty to count three, the drug-conspiracy charge.
An attachment (Attachment A) to the written plea agree-
ment served as the factual basis for the plea. Attachment
A provides, in part, that large-scale drug trafficking
organizations — such as the organization to which Ramirez-
Mendoza belonged — often use violence against those
who fail to pay drug debts or as a means to other-
wise maintain control over the organization. At the sen-
tencing hearing, Ramirez-Mendoza’s counsel timely
objected to this portion of Attachment A by saying
that Ramirez-Mendoza “did not necessarily know some
of those facts” — meaning that Ramirez-Mendoza was
unaware that violence could be used in connection with
the conspiracy.
For the quantity of marijuana at issue, the PSR initially
calculated Ramirez-Mendoza’s base-level offense as
26. From there, the PSR recommended a two-level enhance-
ment for possession of a firearm, see U.S.S.G. § 2D1.1(b)(1),
a two-level enhancement for use of violence, see U.S.S.G.
§ 2D1.1(b)(2), and a three-level adjustment for acceptance
of responsibility, see U.S.S.G. § 3E1.1(a)-(b). Thus, the PSR
recommended a sentencing range of 70 to 87 months’
imprisonment based on a total criminal offense level of
27 and a Category I criminal history. Notably, the district
court accepted the PSR’s recommendation, over the govern-
ment’s objection, against applying a two-level enhance-
ment under U.S.S.G. § 2D1.1(b)(12) for maintaining
6 No. 11-3314
a premises for manufacturing or storing marijuana.
The district court ultimately departed from the guide-
lines range and imposed a sentence of 144 months’ impris-
onment.
II. ANALYSIS
We review Ramirez-Mendoza’s sentence for reasonable-
ness under an abuse of discretion standard. United
States v. England, 604 F.3d 460, 464 (7th Cir. 2010).
First, we determine whether the sentencing court commit-
ted procedural error — such errors include, for example,
an improperly calculated guidelines range or the failure
to consider the 18 U.S.C. § 3553(a) factors. United
States v. Scott, 555 F.3d 605, 608 (7th Cir. 2009). If there
was no procedural error, we then review the sentence
for substantive reasonableness. Id.On appeal, Ramirez-Mendoza contends that the district
court committed three errors in rendering an above-
guidelines sentence, although we have grouped the
first two for ease of analysis. First, Ramirez-Mendoza
argues that the sentencing court failed to adequately
address two of his arguments: (1) whether Ramirez-
Mendoza was coerced into participating in the kid-
napping; and (2) whether Roberto’s kidnapping
was foreseeable. Second, Ramirez-Mendoza argues
that the length of his sentence was substantively unreason-
able.
No. 11-3314 7
A. Procedural Error
We begin with the oft-cited principle that the sentenc-
ing court “must adequately explain the chosen sentence
to allow for meaningful appellate review and to promote
the perception of fair sentencing.” Gall v. United States,
552 U.S. 38, 50 (2007); see also United States v. Garcia-
Oliveros, 639 F.3d 380, 381 (7th Cir. 2011) (per curiam);
(“A sentencing court commits procedural error by not
adequately explaining its choice of sentence.”). But
in applying Gall, we have carefully noted that a sentenc-
ing judge “need not belabor the obvious,” United States
v. Gary, 613 F.3d 706, 709 (7th Cir. 2010), nor must the
sentencing judge always address “stock” arguments
made in mitigation, United States v. Tahzib, 513 F.3d
692, 695 (7th Cir. 2008); Gary, 613 F.3d at 709 (“ ‘[S]tock’
arguments in mitigation often can be rejected with little
or even no explanation.”). “Stock” arguments have
been previously defined as near-meritless arguments
that a sentencing court frequently encounters. See, e.g.,
United States v. Mendoza, 576 F.3d 711, 722 (7th Cir. 2009);
Tahzib, 513 F.3d at 695.
With that, we turn to the question of whether the district
court adequately addressed two of Ramirez-Mendoza’s
principal arguments. First, Ramirez-Mendoza argues
that the district court ignored his claim that he was coerced
into participating in the kidnapping, and thus, whether
he was entitled to a reduction to his calculated criminal
offense level. See U.S.S.G. § 5K2.12 (“If the defendant
committed the offense because of serious coercion, black-
mail or duress, under circumstances not amounting to
8 No. 11-3314
a complete defense, the court may depart downward.”).
We agree. In his sentencing memorandum, Ramirez-
Mendoza offered evidence suggesting that he was
also kidnapped or, at a minimum, subjected to signifi-
cant pressure to collect Hector’s debt. For example,
Ramirez-Mendoza claims that Rodriguez threatened
harm to Ramirez-Mendoza’s family if he did not
help collect the debt. Ramirez-Mendoza also points to
his statement during the recorded phone call with
Roberto— “[i]t’s not coming from me brother . . . you know
what they did to me” — which could be evidence of coer-
cion. There is also the matter of the duct tape found on
a second chair in the South Sacramento house and
the simple fact that Ramirez-Mendoza consistently
and forcefully called on Roberto to answer for the
debt, even though Ramirez-Mendoza and Roberto
were social acquaintances. All this is to say that Ramirez-
Mendoza’s coercion argument is more than a mere
stock argument. Accordingly, the district court should
have addressed it at the sentencing hearing.
The government concedes that the district court never
expressly addressed Ramirez-Mendoza’s coercion argu-
ment; rather, the government contends that the district
court implicitly rejected the argument by calling
into question Ramirez-Mendoza’s credibility — but in a
different context. The district court’s intimation without
confronting the coercion argument head-on is simply
not enough for non-frivolous arguments. See United States
v. Schroeder, 536 F.3d 746, 756 (7th Cir. 2008). Alternatively,
the government suggests that any error by the
district court is harmless. See United States v. Acosta,
No. 11-3314 9
474 F.3d 999, 1004 (7th Cir. 2007). Acosta is inapposite.
There, we noted that the defendant’s coercion argument
was meritless, entirely premised on the defendant’s self-
serving testimony, and not even a principal focus at
her sentencing hearing. Id. The exact opposite is true
of Ramirez-Mendoza’s argument. Additionally, harmless
error plays a role in sentencing when a district court
does not discuss an immaterial sentencing argument. Id.at 1003 (citing United States v. Cunningham, 429 F.3d 673,
678 (7th Cir. 2005)). As discussed, Ramirez-Mendoza’s
argument is not frivolous, and thus, it cannot be swept
away through harmless error.
Ultimately, the government may dispute the relevance or
truth of the coercion evidence, and the government
might be correct in arguing that Ramirez-Mendoza created
this coercion story out of whole cloth. We take no view
on the veracity of Ramirez-Mendoza’s theory, except to
say that it was a principal argument worthy of the district
court’s attention. See Cunningham, 429 F.3d at 679 (“A judge
who fails to mention a ground of recognized legal
merit (provided it has a factual basis) is likely to have
committed an error or oversight.”). This argument
was neither meritless nor one frequently encountered
by sentencing courts. It deserved the attention of
the district court.
Ramirez-Mendoza also claims that the district court
failed to adequately consider whether his co-conspirators’
actions should be charged to him as relevant conduct.
See U.S.S.G. § 1B1.3(a)(1)(B) (Generally, a defendant can
be held liable for “all reasonably foreseeable acts and
10 No. 11-3314
omissions of others in furtherance of the jointly under-
taken criminal activity . . . .”). Here, the district court
enhanced Ram irez-M endoza’s sentence because
the kidnapping and use of firearms by his co-conspirators
was reasonably foreseeable to him, and thus, relevant
for purposes of crafting his sentence. But, Ramirez-
Mendoza faults the district court for improperly relying
on disputed evidence. Specifically, Ramirez-Mendoza
highlights his objection to one paragraph of Attachment
A to the plea agreement, which indicated that Ramirez-
Mendoza was aware of the violence drug trafficking
organizations typically use to collect drug debts.
On appeal, Ramirez-Mendoza claims that the
district court improperly relied upon the objected-to
paragraph in Attachment A in holding that his co-conspira-
tors’ violent acts were foreseeable. Assuming this is
true, Ramirez-Mendoza argues that the district court
never sufficiently explained why his co-conspirators’
violence should be charged to him as relevant conduct.
We generally agree with Ramirez-Mendoza that the district
cou rt improperly mentioned his “adm issions,”
which presumably is a reference to the objected-to para-
graph in Attachment A. But, the district court also
made an explicit credibility finding on the foreseeability
issue. Specifically, the district court said: “A disassocia-
tion by the defense to these [foreseeability] facts is not
believable . . . given the physical evidence that . . . con-
nect[s] the Defendant to these events. And I’m referring
to the cell phones and other facts that make those argu-
ments relative to disassociation implausible . . . .” (Sent. Tr.
at 53.) Such a credibility finding is exactly the type of find-
No. 11-3314 11
ing necessary for a district court to have sufficiently
considered a defendant’s sentencing argument. Although
the district court should have avoided referring to
a contested admission, we are satisfied that its brief
credibility determination adequately explains the
decision to reject Ramirez-Mendoza’s foreseeability
argument. See United States v. Williams, 616 F.3d 685,
694 (7th Cir. 2010) (“Because this explanation demon-
strated the court’s basis for its reasons, it matters little
that the explanation was brief.”); Schroeder, 536 F.3d at 755(“A short explanation will suffice where the context
and record make clear the reasoning underlying the district
court’s conclusion.”).1
B. Substantive Reasonableness
Because the district court did not address one meritori-
ous argument offered in mitigation, we need not consider
whether Ramirez-Mendoza’s sentence was substantively
1
We are skeptical that Ramirez-Mendoza’s foreseeability
argument is worthy of the district court’s attention—that is,
whether it is something other than a stock argument. Anyone
who so much as opens a newspaper must know that large-scale
drug conspiracies use violence to maintain territory, ensure
payment, and enforce organizational structure. Surely Ramirez-
Mendoza had some inkling that Rodriguez would resort to
violence if a customer failed to pay a $30,000 or $75,000 debt.
That said, we assume without deciding that this is a meritorious
claim and instead find that the district court’s credibility finding
sufficiently explains its choice of sentence.
12 No. 11-3314
unreasonable. See Cunningham, 429 F.3d at 680. But, we
take this opportunity to stress that sentencing judges
rightly maintain significant discretion in fashioning an
appropriate sentence. It is the sentencing judge that
hears evidence and makes credibility determinations, both
of which give the judge insights into a case that a
cold record simply cannot convey. Gall, 552 U.S. at 51-52.
Ultimately, given the seriousness and viciousness of
the alleged kidnapping, a 144-month sentence may
be reasonable, and the sentencing judge is free to reimpose
that sentence after adequately considering Ramirez-
Mendoza’s coercion argument.
III. CONCLUSION
For the foregoing reasons, we V ACATE Ramirez-
Mendoza’s sentence and R EMAND to the district court for
resentencing.
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