United States v. Euripides Caguana

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 15-3453 & 16-4152
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EURIPIDES CAGUANA,
Defendant-Appellant.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:13-cr-00823-1 — Thomas M. Durkin, Judge.
____________________
ARGUED NOVEMBER 9, 2017 — DECIDED MARCH 8, 2018
____________________
Before RIPPLE, MANION, and SYKES, Circuit Judges.
RIPPLE, Circuit Judge. A grand jury charged Euripi-
des Caguana with four counts of using a facility of interstate
commerce with the intent that the murder-for-hire of two in-
dividuals be committed, in violation of 18 U.S.C. § 1958(a).
After a five-day trial, the jury rejected Mr. Caguana’s entrap-
ment defense and found him guilty on all counts. The district
court sentenced him to a total of 210 months’ imprisonment
and one year of supervised release.
2 Nos. 15-3453 & 16-4152
After filing a timely appeal of his convictions and sen-
tence, Mr. Caguana filed a motion in the district court under
Federal Rule of Criminal Procedure 33, requesting a new trial
based on newly discovered evidence. We ordered a limited
remand. See Fed. R. App. P. 12.1. 1 After a full evidentiary
hearing, the district court denied the motion for a new trial.
Mr. Caguana timely appealed from that ruling. 2 We consoli-
dated his two appeals.
We now affirm the judgments of the district court.
Mr. Caguana’s challenges to the sufficiency of the evidence,
with respect to both his intent to pay for a murder-for-hire
and his entrapment defense, fail as a matter of law. Our case
law clearly forecloses his argument that the intent element of
§ 1958(a) requires a legally binding contract. Here, there was
sufficient evidence that Mr. Caguana had the requisite intent
that a murder-for-hire be committed. The jury was entitled to
credit the testimony of the informant and to make reasonable
inferences from the evidence, which included a number of
recorded conversations introduced by the Government.
The evidence also was sufficient to permit the jury to reject
Mr. Caguana’s entrapment defense. The district court thor-
oughly examined this matter in adjudicating Mr. Caguana’s
1 Under Federal Rule of Appellate Procedure 12.1, if a timely motion is
made in district court for relief that the court lacks authority to grant be-
cause an appeal has been docketed and is pending, and the district court
states that the motion raises a substantial issue, the court of appeals may
remand for further proceedings while retaining jurisdiction. Fed. R. App.
P. 12.1.
2 Although Mr. Caguana appealed this ruling, he has not challenged it in
his submissions to us. Therefore, as explained later in this opinion, our
review is largely limited to the original trial record.
Nos. 15-3453 & 16-4152 3
motion for a new trial, and Mr. Caguana does not meaning-
fully challenge the denial of that motion on appeal. Based on
the existing trial record, we are convinced that the jury acted
reasonably in finding that Mr. Caguana was not entrapped by
a government agent.
Mr. Caguana’s challenge to his sentence must also fail. The
district court followed the plain wording of the applicable
guidelines provisions and correctly applied those provisions
to the facts of this case. There is no question that the sentence
is substantively reasonable.
I
BACKGROUND
A. Facts 3
In June 2011, the State of Illinois charged Mr. Caguana’s
seventeen-year-old son with murder, attempted murder, and
firearms offenses. Two of his son’s friends, who were arrested
in connection with the same incident, became state witnesses
against his son. Mr. Caguana believed the trial would begin
in fall 2013. On October 8, 2013, Mr. Caguana called a long-
time acquaintance, James Valentin, 4 and told him that he
wanted to find a hit-man to kill the two state witnesses. Val-
3We present the facts in the light most favorable to the prosecution, alt-
hough we occasionally note where certain facts were disputed at trial.
4 The parties disputed the nature of the relationship between Valentin and
Mr. Caguana. Valentin said he spoke with the defendant about once a
month and did occasional plumbing jobs for him; Mr. Caguana described
Valentin as a trusted friend for many years.
4 Nos. 15-3453 & 16-4152
entin then contacted a detective with the Chicago Police De-
partment, Jerry Pentimone, and informed him of
Mr. Caguana’s plan. Valentin had known Detective Pen-
timone for a long time. Valentin had acted as a “John Doe” for
Detective Pentimone in more than twenty narcotics, weapons,
and gang-related search warrants. He testified at trial that nei-
ther Detective Pentimone nor the Chicago Police Department
compensated him or gave him any benefit in exchange for the
information he had provided over the years.
On October 15, 2013, Valentin met with Mr. Caguana at a
restaurant in Chicago to discuss the murder-for-hire.
Mr. Caguana reiterated his plan and showed Valentin photo-
graphs of the two target witnesses as well as handwritten
notes he had taken about the witnesses’ daily movements and
whereabouts. Valentin testified that during that meeting,
Mr. Caguana offered to pay $7,500 for the double homicide—
$5,000 for the first murder, $2,000 for the second murder, and
$500 for a gun. According to Valentin, Mr. Caguana also
promised to give Valentin’s son a Cadillac Escalade once the
plan was completed.
Immediately following this meeting, Valentin relayed the
updated information to Detective Pentimone, who then con-
tacted the Federal Bureau of Investigation. Special Agent Lora
Richardson met with Valentin and Detective Pentimone that
same day, and the FBI decided to join the Chicago Police De-
partment in investigating Mr. Caguana. At the direction of the
FBI, Valentin called Mr. Caguana and, in a recorded conver-
sation, conveyed that he had found a hit-man and needed
money to compensate him. Mr. Caguana told Valentin to
come to his garage so they could sort out the details.
Nos. 15-3453 & 16-4152 5
Mr. Caguana ended the conversation by saying “We’re gonna
do it. We’re gonna do it.” 5
Later that same day, Valentin met Mr. Caguana at his gar-
age; he wore a body wire, but the wire malfunctioned and did
not record. During the meeting, Mr. Caguana gave Valentin
$500 to purchase a gun and drove Valentin around to show
him where the witnesses lived. They made plans to meet the
next morning along with the hit-man whom Valentin had
procured.
On October 16, 2013, Mr. Caguana met with Valentin and
Officer Jose Almanza (who was posing as a hit-man) at Chase
Park in Chicago. They met in Valentin’s car, and the conver-
sation was recorded. They discussed details of the plan, in-
cluding which witness would be killed first, as well as com-
pensation for the murders. Mr. Caguana said he could “go to
[his] house, … get the five thousand to get this guy,” and that
“[r]ight now is five thousand and then … the seven thousand
five hundred.” 6 Officer Almanza left the meeting with the un-
derstanding that Mr. Caguana was planning to give him a
$2,000 down payment later that day.
Special Agent Richardson and Detective Pentimone ar-
rested Mr. Caguana as he exited Valentin’s car. Mr. Caguana
5 R.114 at 167.
6 R.167 (transcript of audio recording at 8–9, available in the case file). Val-
entin understood Mr. Caguana as indicating that he would pay $5,000 for
the first murder, $2,000 for the second murder, and $500 for the gun, which
they had discussed earlier.
6 Nos. 15-3453 & 16-4152
told them that he had been discussing a sewer job with Val-
entin, which was clearly controverted by the recording.
Mr. Caguana was taken into custody and denied bond.
B. District Court Proceedings 7
A grand jury indicted Mr. Caguana in a four-count, second
superseding indictment with using facilities of interstate com-
merce with the intent that a murder-for-hire be committed, in
violation of 18 U.S.C. § 1958(a). After a trial in May 2015, the
jury found him guilty on all counts. Mr. Caguana filed a mo-
tion for a judgement of acquittal or new trial, contending that
the evidence was insufficient as a matter of law to uphold his
convictions. The district court denied the motion. It sentenced
Mr. Caguana to concurrent sentences of 105 months each on
Counts 1 and 2, to run consecutively with concurrent sen-
tences of 105 months each on Counts 3 and 4. In addition to
this 210-month sentence, Mr. Caguana received one year of
supervised release.
During the trial, Mr. Caguana argued that Valentin had
unlawfully induced him to enter the murder-for-hire plot. He
argued that, given this inducement, he was entitled to an en-
trapment defense. The Government argued in response that
Mr. Caguana was predisposed to commit the offense, that he
was not induced by Valentin, and that, in any event, Valentin
7 The jurisdiction of the district court is premised on 18 U.S.C. § 3231.
Nos. 15-3453 & 16-4152 7
was not acting as a government agent at the time of the al-
leged entrapment. The district court instructed the jury on en-
trapment, 8 but the jury rejected the entrapment defense.
8 The jury instruction on entrapment read:
The government has the burden of proving beyond a
reasonable doubt that the defendant was not entrapped
by Mr. Valentin in this case. In order to find that defend-
ant was not entrapped as a result of Mr. Valentin’s alleged
actions, you must find, beyond a reasonable doubt, that
either:
1. The defendant was predisposed to commit the crime
charged in the indictment; or
2. The defendant was not induced by Mr. Valentin to
commit the charged crimes; or
3. At the time defendant claims to have been induced,
Mr. Valentin was not acting as an agent of the gov-
ernment with respect to his interactions with the de-
fendant.
If you do not unanimously find beyond a reasonable
doubt that the defendant was:
1. predisposed to commit the crime charged in the in-
dictment, or
2. not induced by Mr. Valentin to commit the charged
crimes,
then you must decide whether, at the time the defendant
claims Mr. Valentin induced him to commit the charged
crimes, Mr. Valentin was acting as an agent of the govern-
ment with respect to his interactions with the defendant.
R.86 Instruction Number 19.
8 Nos. 15-3453 & 16-4152
After sentencing, Mr. Caguana filed a timely appeal, 9 chal-
lenging the sufficiency of the evidence and the calculation of
his sentence. However, before full appellate briefing, he filed
a motion for a new trial in the district court pursuant to Fed-
eral Rule of Criminal Procedure 33. He claimed that newly
discovered evidence warranted a new trial, and alleged that
Valentin had a long history of working with, and receiving
benefits from, the Chicago Police Department in exchange for
information about criminal activity. If true, that allegation
would mean that Valentin committed perjury during the trial
when he testified that he was not a paid informant and was
not compensated by the Chicago Police Department for
providing information.
We granted a limited remand based on the district court’s
view that the motion raised a substantial issue and warranted
further proceedings. On remand, the district court approved
the appointment of a private investigator, authorized the is-
suance of numerous subpoenas, and conducted a full eviden-
tiary hearing regarding Valentin’s relationship with the Chi-
cago Police Department. Ultimately, the court determined
that the new evidence was insufficient to warrant a new trial
and denied Mr. Caguana’s Rule 33 motion. 10 Mr. Caguana
9The jurisdiction of this court is premised on 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a).
10 The district court explained its reasoning at the close of the post-trial
evidentiary hearing. See R.160 at 200–09. As the court explained, it held
the hearing in response to newly discovered evidence suggesting that Val-
entin was paid by, or received benefits from, the Chicago Police Depart-
ment in exchange for his tips about criminal activity. Valentin’s siblings
had contacted Mr. Caguana’s attorney, alerting him to a cozy and lucra-
tive relationship between their brother and the police department. If true,
Nos. 15-3453 & 16-4152 9
timely appealed that judgment, and we consolidated it with
his previous appeal.
Mr. Caguana now challenges the sufficiency of the evi-
dence in the jury trial, the district court’s handling of his en-
trapment defense, and the calculation of his sentence. Alt-
hough his second appeal concerned the district court’s denial
of his Rule 33 motion, his briefs are devoid of any challenges
to that judgment.
II
DISCUSSION
A.
We first examine Mr. Caguana’s submission that the evi-
dence in the record is legally insufficient to support his con-
victions. A challenge to the sufficiency of the evidence can be
successful only when, after viewing the evidence in the light
most favorable to the prosecution, we nevertheless are con-
vinced that no rational jury could have found the defendant
guilty beyond a reasonable doubt. United States v. Maloney, 71
F.3d 645, 656 (7th Cir. 1995). In this evaluation, we do not
“weigh the evidence, make credibility determinations, or re-
solve testimonial inconsistencies.” United States v. Webber, 536
F.3d 584, 597 (7th Cir. 2008) (citations omitted). Given these
their testimony would contradict the trial testimony of both Valentin and
Officer Pentimone. The district court evaluated the testimony of Valentin’s
siblings at the post-trial hearing and found it to be biased and untruthful.
See id. at 202–04 (describing the witnesses as “incomprehensible,” “nonre-
sponsive,” and “internally inconsistent”). At bottom, the court determined
that the new evidence was merely collateral impeachment and did not
warrant a new trial. Id. at 205, 207, 210.
10 Nos. 15-3453 & 16-4152
restrictions on our review, Mr. Caguana, like all defendants
making this argument, “bears a heavy burden.” United States
v. Gibson, 530 F.3d 606, 612 (7th Cir. 2008) (internal quotation
marks omitted).
Mr. Caguana was charged under 18 U.S.C. § 1958(a), the
federal murder-for-hire statute, which reads as follows:
Whoever travels in or causes another … to
travel in interstate or foreign commerce, or uses
or causes another … to use … any facility of in-
terstate or foreign commerce, with intent that a
murder be committed in violation of the laws of
any State or the United States as consideration
for the receipt of, or as consideration for a prom-
ise or agreement to pay, anything of pecuniary
value, or who conspires to do so, shall be fined
under this title or imprisoned … .
18 U.S.C. § 1958(a). As we have explained, this offense encom-
passes two elements: “(1) traveling in, or using a facility of,
interstate or foreign commerce, or causing another person to
do so, (2) with the intent that a murder for hire be committed.”
United States v. Dvorkin, 799 F.3d 867, 875 (7th Cir. 2015). No-
tably, the second element requires “intent that a murder be
committed … as consideration for the receipt of, or as considera-
tion for a promise or agreement to pay, anything of pecuniary
value.” 18 U.S.C. § 1958(a) (emphasis added). 11
11 The statute defines “anything of pecuniary value” as “anything of value
in the form of money, a negotiable instrument, a commercial interest, or
anything else the primary significance of which is economic advantage.”
18 U.S.C. § 1958(b)(1).
Nos. 15-3453 & 16-4152 11
The parties stipulated to the interstate-commerce element,
but they disagree on the requirements and satisfaction of the
intent element. Mr. Caguana contends that the Government
failed to prove the requisite intent because it failed to prove
that he promised or agreed to pay something of pecuniary
value “as consideration for” the murders. Mr. Caguana makes
a number of analytically imprecise arguments about the ab-
sence of evidence that he gave such consideration.
Mr. Caguana suggests that his provision of a gun to the in-
formant and their “just talking about a potential murder for
hire” do not amount to “giving something of pecuniary
value” in exchange for the murders. 12 He also intimates that
the informant facilitated all of the offers to the hit-man and
that the informant’s actions do not demonstrate
Mr. Caguana’s intent. Finally, Mr. Caguana points us to pro-
visions of the Uniform Commercial Code governing offers
and acceptances in the sale of goods. In essence, he argues that
he and the hit-man must have entered into an actual contrac-
tual arrangement. All of these arguments are foreclosed by
our opinion in Dvorkin, coupled with the jury’s reasonable in-
terpretation of the evidence at trial.
Although we have said that § 1958 requires a “quid-pro-
quo between the solicitor and the murderer,” we clearly have
held that “the word ‘consideration’ does not import all of con-
tract law.” Gibson, 530 F.3d at 610 (internal quotation marks
omitted). 13 We also have explained that “the statutory phrase
12 Appellant’s Br. 8.
13In United States v. Gibson, 530 F.3d 606, 611 (7th Cir. 2008), we rejected
counterarguments based on United States v. Wicklund, 114 F.3d 151 (10th
Cir. 1997).
12 Nos. 15-3453 & 16-4152
‘consideration for a promise or agreement to pay’ does not
create a separate ‘agreement element,’ but rather modifies the
type of intent which a defendant must possess, namely, the
intent to commit a murder for hire.” Dvorkin, 799 F.3d at 875–
76. Accordingly, the Government need not prove an actual
murder-for-hire agreement. It must prove only that
Mr. Caguana had the intent that a murder-for-hire be commit-
ted. Id. at 878. Despite this clear precedent, Mr. Caguana ar-
gues that under the Uniform Commercial Code, any promise
he made did not amount to legally binding consideration. But
§ 1958(a) does not require proof of an actual murder-for-hire
agreement. Id.
Once we strip away Mr. Caguana’s failed claim that § 1958
requires proof of an actual contract, we are left with the ques-
tion of whether the Government proffered sufficient evidence
of his intent that a murder-for-hire be committed. Intent is of-
ten established by circumstantial evidence, and the Govern-
ment provided a good deal of such evidence here. Specifi-
cally, it presented evidence that Mr. Caguana gave $500 to
Valentin to purchase a gun for the murders, tracked the vic-
tims’ movements and gave his surveillance notes to Valentin,
interviewed a potential hit-man, suggested the order of the hit
list to the hit-man, offered to pay $7,000 for the completed
double homicide (with $2,000 as a down payment), and prom-
ised to give Valentin’s son a Cadillac Escalade as compensa-
tion for Valentin’s help facilitating the plot.
Despite all of this evidence, Mr. Caguana claims that, as a
matter of law, it does not show that he intended to “promise
or agree[] to pay[] anything of pecuniary value” in exchange
for the murders. He emphasizes that most of this evidence
comes from Valentin’s testimony and that Valentin is not a
Nos. 15-3453 & 16-4152 13
credible witness. It was quite proper for Mr. Caguana to argue
that Valentin’s motives and history as a police informant
made his testimony unworthy of belief, but we certainly can-
not say that his testimony was “so unbelievable that no rea-
sonable factfinder could credit” him. United States v. Contreras,
820 F.3d 255, 263 (7th Cir. 2016).
Mr. Caguana had, moreover, a full opportunity to attack
Valentin’s credibility during the jury trial. Despite his efforts,
the jury credited Valentin’s testimony, and the district court
did not find sufficient evidence of perjury by Valentin to war-
rant a new trial (a finding which Mr. Caguana does not chal-
lenge on appeal). As we noted earlier, defendants who chal-
lenge the sufficiency of the evidence supporting a jury verdict
face an uphill battle, and “nowhere is this more true than
when it comes to credibility determinations.” Id. We are not
entitled to second-guess the jury’s assessment of Valentin’s
credibility unless his testimony was “internally inconsistent,
implausible, or contradicted by extrinsic evidence.” Id. That
certainly is not the case here.
Independently of Valentin’s damning testimony, the Gov-
ernment provided additional evidence demonstrating that
Mr. Caguana intended to reward the murders. The jury heard
recorded conversations among Mr. Caguana, Valentin, and
Officer Almanza (posing as a hit-man) discussing the murder-
for-hire. Although these conversations involved a number of
veiled terms—such as “[h]e gonna throw you a chop” 14 and
“[h]ow much bread you got?” 15—the jury was entitled to infer
criminal intent from such language. We have noted that
14 R.114 at 238; R.116 at 627.
15 R.114 at 242.
14 Nos. 15-3453 & 16-4152
“[c]riminals have a way of agreeing and conspiring through
the use of code language, which clearly imparts their inten-
tions while hoping to hide their meaning from law enforce-
ment.” Gibson, 530 F.3d at 610. That is precisely why § 1958(a)
does not require proof that the solicitor and murderer make
an agreement “as clear as businessmen might.” Id.
And the conversations were not always that ambiguous.
At one point in a recorded conversation, Mr. Caguana told
Officer Almanza, “if you want we can go there and do this
guy here and then I give you, I’ll go to my house, boom boom
I get, I get the $5,000 to get this guy.” 16 Mr. Caguana claims
that he said this out of fear of the hit-man, but the jury was
entitled to disbelieve his explanation and to credit this rather
direct evidence that he intended to compensate the mur-
ders. 17 Accordingly, Mr. Caguana’s submission that the evi-
dence of record is legally insufficient to support his convic-
tions must fail.
B.
Mr. Caguana next contends that the district court’s in-
struction on entrapment was erroneous and that the court
16 R.116 at 632.
17 Mr. Caguana also argues that the fact that he gave Valentin $500 to pur-
chase a gun does not prove that he intended to compensate anyone for the
murders, because giving an informant money for a weapon does not
equate to paying for a murder. We need not decide whether this $500 pay-
ment proved Mr. Caguana’s intent to remunerate the murders, since the
Government presented separate evidence that he offered to pay $7,000 for
the murders themselves.
Nos. 15-3453 & 16-4152 15
should have granted his motion for a judgment of acquittal or
new trial on that ground. 18
We review de novo whether a district court’s jury instruc-
tions “fairly and accurately summarize the law.” Webber, 536
F.3d at 599 (internal quotation marks and alteration omitted).
However, “[t]he right to object to jury instructions on appeal
is waived if the record illustrates that the defendant approved
of the instructions at issue.” United States v. Griffin, 84 F.3d
912, 924 (7th Cir. 1996).
The district court’s entrapment instruction allowed the
jury to reject the entrapment defense if the Government
proved beyond a reasonable doubt that Valentin was “not act-
ing as an agent of the government” at the time of the alleged
inducement. 19 In Mr. Caguana’s view, this instruction im-
properly lowered the Government’s burden of proof. How-
ever, Mr. Caguana approved the entrapment instruction in
district court 20 and consequently waived this ground for ap-
peal. See id. In any event, we see no merit at all to his conten-
tion. It is well established that “[t]here is no defense of private
entrapment.” United States v. Morris, 549 F.3d 548, 551 (7th Cir.
2008). Therefore, if Valentin was acting as a private individual
18 The Government suggests that Mr. Caguana has waived his challenge
to the entrapment instruction for lack of development in his opening brief.
See Government’s Br. 30 n.4 (citing United States v. Smith, 831 F.3d 793, 803
(7th Cir. 2016)). Despite any shortcomings in Mr. Caguana’s briefs, we de-
cide this issue on other grounds given the clear outcome in the Govern-
ment’s favor.
19 R.86 Instruction No. 19.
20 See R.116 at 658–59 (approving instruction number nineteen at instruc-
tion conference).
16 Nos. 15-3453 & 16-4152
rather than an agent of the Government, Mr. Caguana’s en-
trapment defense fails. The district court’s instruction fairly
and accurately captured the distinction between private “vig-
ilantism” and entrapment by state agents, only the latter of
which is a defense to criminal charges. Id. at 550–51. It did not
reverse or reduce the Government’s burden of proof.
Mr. Caguana also argues, albeit obliquely, that there was
insufficient evidence for the jury to find against his entrap-
ment defense. He contends that “Valentin cannot keep his
story straight,” and that Valentin’s testimony regarding his
relationship to the Chicago Police Department was “non-
sense.” 21 Valentin’s history as a police informant certainly
gave the defense a ground upon which to challenge the cred-
ibility of his account. Indeed, defense counsel cross-examined
Valentin at trial about the twenty-two cases in which he had
worked with the Chicago Police Department. 22 Nevertheless,
challenges to the credibility and conflicting testimony of wit-
nesses are largely left to the jury. We have no authority to
overturn on appeal the jury’s reasonable findings of fact on
this matter. As noted above, Valentin’s testimony was not in-
ternally inconsistent, implausible, or contradicted by extrinsic
evidence. See Contreras, 820 F.3d at 263.
Moreover, after the jury’s verdict, Mr. Caguana requested
a new trial based on newly discovered evidence suggesting
that Valentin perjured himself by misrepresenting his rela-
tionship with the Chicago Police Department. The district
court found that Mr. Caguana’s request raised a “substantial
21 Reply Br. 4–5.
22 See R.114 at 273; R.115 at 336–37.
Nos. 15-3453 & 16-4152 17
issue” warranting further proceedings, 23 and we granted a
limited remand. 24 Thereafter, the district court approved a
post-trial investigation, authorized the appointment of a pri-
vate investigator, allowed the issuance of subpoenas to obtain
multiple documents and witnesses, and conducted a full evi-
dentiary hearing on the matter. After extensive review, the
court found that Valentin had not committed perjury and that
a new trial was not warranted based on “merely impeaching
or cumulative” new evidence. 25
Mr. Caguana does not challenge the district court’s denial
of his motion for a new trial, so our assessment of his suffi-
ciency challenge is based on the original evidence before the
jury. See, e.g., United States v. Bender, 539 F.3d 449, 453, 456 (7th
Cir. 2008) (affirming denial of new trial based on purported
new evidence and deciding sufficiency challenge based on
original record). Nonetheless, we mention these post-trial
proceedings insofar as they assure us that Mr. Caguana had
an adequate opportunity to vet Valentin’s relationship with
the Chicago Police Department in support of his entrapment
theory. Because the jury was entitled to credit Valentin, we
cannot accept Mr. Caguana’s argument that there was insuf-
ficient evidence for the factfinder to reject his entrapment de-
fense.
23 R.124.
24 App. R.17.
25R.160 at 207; see United States v. Bender, 539 F.3d 449, 456 (7th Cir. 2008)
(noting that cumulative impeachment evidence is generally insufficient to
warrant a new trial).
18 Nos. 15-3453 & 16-4152
C.
We now turn to Mr. Caguana’s contention that the district
court erred in its interpretation of the Sentencing Guidelines
and, consequently, imposed an unlawful sentence. The stand-
ards of review that govern our examination of this matter are
well established. We review de novo a district court’s inter-
pretation of the Guidelines; we review its factual findings for
clear error. The substantive reasonableness of a sentence is re-
viewed for abuse of discretion. United States v. Grzegorczyk,
800 F.3d 402, 405 (7th Cir. 2015). A sentence within a correctly
calculated guidelines range is presumptively reasonable on
appeal. Id.
Mr. Caguana argues that the district court misinterpreted
the Guidelines and unlawfully “double counted” the element
of the offense involving “the offer … of anything of pecuniary
value for undertaking the murder.” U.S.S.G. § 2A1.5(b)(1).
In determining Mr. Caguana’s sentence, the district court
first looked to § 2E1.4 of the Guidelines, because the statutory
index pairs convictions under 18 U.S.C. § 1958 with the of-
fense guideline in § 2E1.4. See U.S.S.G. Appendix A. This pro-
vision, titled “Use of Interstate Commerce Facilities in the
Commission of Murder-For-Hire,” directs the court to apply
the greater base offense level of 32 or “the offense level appli-
cable to the underlying unlawful conduct.” U.S.S.G.
§ 2E1.4(a). Because Mr. Caguana’s underlying unlawful con-
duct was solicitation to commit murder, the court looked to
§ 2A1.5, titled “Conspiracy or Solicitation to Commit Mur-
der,” which has a base offense level of 33.
Starting with the base offense level of 33, the court then
applied a four-level enhancement under § 2A1.5(b)(1) because
Nos. 15-3453 & 16-4152 19
“the offense involved the offer or the receipt of anything of
pecuniary value for undertaking the murder.” Lastly, the
court added two more levels for obstruction of justice based
on Mr. Caguana’s false exculpatory testimony at trial. His fi-
nal adjusted offense level was 39.
When paired with Mr. Caguana’s criminal history of I, the
final offense level produced a guideline range of 262–327
months. The court imposed a sentence of 210 months’ impris-
onment, composed of 105 months each for Counts 1 and 2 (to
be served concurrently), followed by 105 months each for
Counts 3 and 4 (to be served concurrently). Mr. Caguana also
received one year of supervised release.
In the district court, Mr. Caguana challenged the four-
level adjustment under § 2A1.5(b)(1). He argued that the base
offense level of 33 already accounted for the underlying
§ 1958 offense, which has as one of its elements the intent that
a murder be committed in exchange for “a promise or agree-
ment to pay[] anything of pecuniary value.” 18 U.S.C.
§ 1958(a). In his view, the additional enhancement—which
was based on the fact that the offense “involved the offer …
of anything of pecuniary value for undertaking the mur-
der”—amounted to double counting.
The district court rejected this argument. It reasoned that
“solicitation to commit murder” (the conduct underlying the
base offense level in § 2A1.5) does not necessarily involve of-
fering something of pecuniary value. For instance, the court
suggested, one could solicit a murder as a favor. 26 Therefore,
26The district court also noted that without the § 2A1.5(b)(1) enhance-
ment, the offense guideline under § 2A1.5(a) would result in a 168–210
20 Nos. 15-3453 & 16-4152
the district court concluded that the enhancement for offering
something of pecuniary value did not “double count” con-
duct already accounted for in the base offense level. 27
Mr. Caguana now repeats the same double-counting argu-
ment, and like the district court, we cannot accept his conten-
tion. A plain reading of the Guidelines makes clear that there
is no “double counting” here. The base offense level applies
to any solicitation; the enhancement is added only in those
cases where, as here, the solicitation is accomplished through
an offer to pay something of value. 28
We perceive no legal error or factual misapprehension in
the district court’s sentencing of Mr. Caguana. His sentence,
below the guideline range, is clearly reasonable for the of-
fenses of which he stands convicted.
guideline range, which still encompasses the Mr. Caguana’s sentence. The
court did not, however, explicitly state that it would have imposed the
same sentence if the enhancement did not apply.
27 We note that Mr. Caguana does not challenge the application of §
2A1.5
to determine his base offense level. He challenges only the enhancement
under § 2A1.5(b)(1).
28 We note parenthetically that in United States v. Vizcarra, 668 F.3d 516,
518 (7th Cir. 2012), we held that “the same conduct may determine the
base offense level and also trigger the cumulative application of enhance-
ments … unless a specific guideline instructs otherwise.” There, the de-
fendant claimed that applying an enhancement for kidnapping demand-
ing a ransom was impermissible double counting because a ransom was
an element of his kidnapping conviction. However, based on the guide-
lines commentary and history, as well as case law from our circuit and our
sister circuits, we concluded that “cumulative application—that is, ‘dou-
ble counting’—is the default rule.” Id. at 521.
Nos. 15-3453 & 16-4152 21
CONCLUSION
We hold that there is sufficient evidence to sustain
Mr. Caguana’s convictions, that the district court adequately
instructed the jury on the defense of entrapment, and that the
district court committed no error in the imposition of his sen-
tence. Accordingly, the judgments of the district court are af-
firmed.
AFFIRMED