United States v. Panaigua-Verdugo

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 07-2276 and 07-2353
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AGUSTIN PANAIGUA-VERDUGO AND JOSE CHAVEZ,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 06 CR 219—Barbara B. Crabb, Chief Judge.
____________
ARGUED FEBRUARY 11, 2008—DECIDED AUGUST 8, 2008
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Before BAUER, KANNE and WILLIAMS, Circuit Judges.
BAUER, Circuit Judge. On November 29, 2006, the
grand jury returned an indictment charging Agustin
Panaigua-Verdugo and Jose Chavez with seven counts of
distributing fifty or more grams of a mixture or sub-
stance containing methamphetamine, in violation of
21 U.S.C. § 841(a)(1). Each count involved a separate
drug transaction carried out by Panaigua-Verdugo and
Chavez, or Chavez on his own, over a six month period
in 2006. On February 23, 2007, Panaigua-Verdugo and
Chavez pleaded guilty to one of the counts of the indict-
2 Nos. 07-2276 and 07-2353
ment. After a sentencing hearing, the district court sen-
tenced Panaigua-Verdugo to seventy months’ imprison-
ment and Chavez to 108 months’ imprisonment. On
appeal, Panaigua-Verdugo challenges the district court’s
refusal to apply a minor participant adjustment to his
sentencing calculation; Chavez challenges the district
court’s decision to include drug amounts beyond his
conviction in calculating his sentence; and both defend-
ants challenge the reasonableness of their sentences. For
the following reasons, we affirm.
A. Panaigua-Verdugo: Minor Role Reduction
Panaigua-Verdugo argues that the district court erred
when it declined to grant him a downward adjustment
for playing a minor role in the offense. According to
Panaigua-Verdugo, Chavez arranged the majority of the
drug deals in question with an undercover agent with-
out Panaigua-Verdugo’s input, and, though Panaigua-
Verdugo delivered the drugs on the majority of the occa-
sions, his role was substantively inferior during the
course of the conspiracy.
Under U.S.S.G. § 3B1.2(b), a defendant’s offense level
can be decreased by two levels if he was a minor partici-
pant in any criminal activity. We review the district
court’s interpretation and application of the Sentencing
Guidelines de novo. United States v. Chamness, 435 F.3d
724, 726 (7th Cir. 2006). We review the district court’s
decision to deny a defendant an adjustment for a minor
role in an offense for clear error. United States v. Miller,
Nos. 07-2276 and 07-2353 3
405 F.3d 551, 557 (7th Cir. 2005).1 Clear error exists when,
after reviewing the evidence, we are “left with a definite
and firm conviction that a mistake has been committed.”
United States v. Olivas-Ramirez, 487 F.3d 512, 516 (7th
Cir. 2007). We rarely reverse a district court’s decision
on this issue, given that the district court is in the best
position to evaluate a particular defendant’s role in a
criminal scheme. United States v. Sorich, 523 F.3d 702, 717
(7th Cir. 2008); United States v. Mendoza, 457 F.3d 726, 729
(7th Cir. 2006).
The commentary to § 3B1.2 defines a “minor participant”
as a defendant “who plays a part in committing the
offense that makes him substantially less culpable than
the average participant” and “who is less culpable than
most other participants, but whose role could not be
described as minimal.” U.S.S.G. § 3B1.2 cmt. nn. 3(A) & 5.
Panaigua-Verdugo has the burden of showing he is en-
titled to the adjustment by a preponderance of the evi-
dence. United States v. Sandoval-Vasquez, 435 F.3d 739, 745
(7th Cir. 2006) (citing United States v. Rodriguez-Cardenas,
362 F.3d 958, 960 (7th Cir. 2004)).
Panaigua-Verdugo argues that he should receive the
minor participant adjustment because he: (1) lacked full
knowledge of the drug operation; (2) received little com-
pensation for his efforts (approximately $100 for the
1
The government argues that Panaigua-Verdugo did not
properly preserve this specific argument, and therefore our
review should be for plain error. See United States v. Blaylock,
413 F.3d 616, 619 (7th Cir. 2005). However, Panaigua-Verdugo
properly preserved the issue by objecting to the recommenda-
tion against the minor role adjustment, so our review will be
for clear error.
4 Nos. 07-2276 and 07-2353
deals); (3) was manipulated by Chavez; (4) did little to
forward the drug conspiracy; and (5) acted only as a
“firewall,” or a buffer, between Chavez and the purchaser.
The government, on the other hand, argues that Panaigua-
Verdugo did not bring forth enough evidence to estab-
lish that he was entitled to the minor participant adjust-
ment.
Panaigua-Verdugo delivered 523.47 grams of metham-
phetamine during four of the seven drug transactions
arranged by Chavez over a six-month period, which
amounts to almost ninety percent of the drugs involved
in the deals. He played an integral role in the scheme by
linking the seller to the buyer. Panaigua-Verdugo re-
ceived the drugs from Chavez and followed his instruc-
tions on how to deliver the drugs. By directly coordinating
with Chavez in dealing the drugs to the undercover agent,
Panaigua-Verdugo acted as an “essential component” in
the conspiracy, and the fact that Chavez was arguably
more involved does not entitle a defendant to a re-
duction in the offense level. See United States v. McKee,
389 F.3d 697, 700 (7th Cir. 2004) (citing United States v.
Castillo, 148 F.3d 770, 776 (7th Cir. 1998)).
The fact that Panaigua-Verdugo did not reap substan-
tial pecuniary gains does not automatically render his
level of participation minor. See United States v. Brick, 905
F.2d 1092, 1095 (7th Cir. 1990). Panaigua-Verdugo’s
suggestion that he was just a “firewall” does not take into
account the extent of his role. A more proper characteriza-
tion would be one of a courier, and we have held that
a courier may play an important role in any drug dis-
tribution scheme, and therefore is not automatically
entitled to a mitigating role reduction. See United States
v. Hamzat, 217 F.3d 494, 498 (7th Cir. 2000).
Nos. 07-2276 and 07-2353 5
We conclude that the district court did not clearly err
in denying Panaigua-Verdugo a reduction under
§ 3B1.2(b), with one reservation. During the sentencing
hearing, the district court noted that “I am sentencing
you only for the drug deliveries you made, not for being
part of the larger conspiracy. So I don’t see that it is really
appropriate to give you a minimal participant reduction.”
This was an error. A defendant may receive a reduction
under § 3B1.2 even if he is held accountable only for his
own conduct. United States v. Rodriguez-Cardenas, 362
F.3d 958, 960 (7th Cir. 2004) (citing U.S.S.G. § 3B1.2,
comment. (n.3(A))). However, any error in this regard is
harmless, because the evidence presented by Panaigua-
Verdugo falls far short of showing that he was entitled
to the adjustment. Panaigua-Verdugo delivered the vast
majority of drugs charged in the case, acting in concert
with Chavez in a repeated set of transactions. We uphold
the district court’s primary conclusion that Panaigua-
Verdugo played an integral part in the transactions
and therefore did not deserve a minor participant reduc-
tion, noting the deference afforded district courts on this
issue. See Sorich, 523 F.3d at 717; Mendoza, 457 F.3d at 729.
B. Chavez: Calculation of Drug Quantity
Chavez appeals from the district court’s calculation of
the quantity of drugs involved in the offense, arguing
that the district court did not explicitly support its finding
that the drug amounts in the six other dismissed counts
should be included as “part of the same course of conduct”
for sentencing purposes. Because Chavez forfeited this
issue by failing to raise it below, we review for plain
error. United States v. Lee, 399 F.3d 864, 866 (7th Cir. 2005).
Under that standard, the defendant has the burden
6 Nos. 07-2276 and 07-2353
of proving an error that is obvious and that affects sub-
stantial rights. Id.Under § 1B1.3(a)(2) of the Sentencing Guidelines, all acts
and omissions that were “part of the same course of
conduct or common scheme or plan as the offense of
conviction” should be considered “relevant conduct” for
sentencing purposes. Relevant conduct is factored into
the Guidelines sentencing calculations as if the defendant
had been convicted of that conduct. United States v. White,
519 F.3d 342, 347 (7th Cir. 2008).
When the district court aggregates drug quantities
from unconvicted relevant conduct for purposes of calcu-
lating a defendant’s base offense level, we require that
the court “explicitly state and support, either at the sen-
tencing hearing or (preferably) in a written statement of
reasons, its finding that the unconvicted activities bore
the necessary relation to the convicted offense.” United
States v. Arroyo, 406 F.3d 881, 889 (7th Cir. 2005) (citing
United States v. Bacallao, 149 F.3d 717, 720 (7th Cir. 1998)).
That said, if it is clear that the district court took into
consideration and adopted the facts contained in the
presentence report (“PSR”), as well as the government’s
reasoning concerning those facts, we have upheld the
court’s decision to include the unconvicted activities as
relevant conduct, even without express findings. Id. (citing
Bacallao, 149 F.3d at 720).
Because uncharged drug quantities can add months
or years to a defendant’s advisory guidelines range, we
require that the evidence relied upon by the district
court at sentencing must bear “sufficient indicia of reli-
ability.” United States v. Wilson, 502 F.3d 718, 721-22 (7th
Cir. 2007) (citing United States v. Acosta, 85 F.3d 275, 282
(7th Cir. 1996)). In Chavez’s case, there must be reliable
Nos. 07-2276 and 07-2353 7
evidence to support the district court’s conclusion that
the unconvicted transactions were “part of the same
course of conduct or common scheme or plan” as the
convicted transactions. Two or more offenses are part of
a common scheme or plan if they are connected by at
least one common factor, such as “common victims,
common accomplices, common purpose, or similar modus
operandi.” Bacallao, 149 F.3d at 719 (quoting U.S.S.G.
§ 1B1.3(a)(2), cmt. n. 9). However, “section 1B1.3(a)(2) must
not be read to encompass any offense that is similar in
kind to the offense of conviction but that does not bear
the required relationship to that offense.” Id. at 719-20. In
assessing whether there is a strong relationship between
the unconvicted conduct and the convicted offense,
courts should consider whether the government has
demonstrated a significant similarity, regularity, and
temporal proximity. Id. at 719.
Chavez relies heavily on Bacallao in arguing that the
court erred by not explicitly stating its finding that the
unconvicted activity bore the necessary relation to the
convicted offense. In Bacallao, the district court sen-
tenced the defendant based on a quantity of 3.3 kilo-
grams of cocaine without making an independent
finding that the additional quantity of drugs was
“relevant conduct” and instead relying entirely on the
information contained in the PSR. We held that, under
those particular circumstances, the PSR itself must explain
how the additional quantities were part of the same
course of conduct or common scheme or plan as the offense
of conviction. Finding that the PSR lacked any dates,
common accomplices, or detail concerning how the
cocaine was acquired or distributed, we vacated and
remanded for resentencing. Bacallao, 149 F.3d at 720-22.
8 Nos. 07-2276 and 07-2353
As in Bacallao, the district court made no explicit findings
linking the additional unconvicted drug transactions to
the offense of conviction and relied entirely on the PSR. At
the sentencing hearing, the court stated: “The probation
office prepared the advisory guidelines correctly using
the current guideline manual. The calculations take into
account all acts and omissions that were part of the
same course of conduct or common scheme or plan as
the offense of conviction.” In the written statement of
reasons, the district court specifically stated that it
adopted the PSR without change. It further noted that the
probation office properly prepared the PSR using the
Guidelines, and that “in accordance with § 1B1.3(a)(1) and
(2),” the acts that were part of the same conduct were
taken into account in the Guidelines calculation. Finally,
the court stated: “The base offense level is 32 pursuant to
§ 2D1.1(c)(4), because the offense, including relevant
conduct, involved at least 596.17 grams of methamphet-
amine.”
Unlike Bacallao, the PSR here contains specific informa-
tion about the participants, dates, amounts, and prices of
the charged drug transactions. According to the PSR, on
seven separate occasions over a seven-month period,
Chavez arranged a drug transaction which was carried out
by either Chavez or Panaigua-Verdugo. One of the two
defendants delivered the following amounts of metham-
phetamine to an undercover agent: 14.07 grams on
April 19, 2006; 27.44 grams on April 25, 2006; 27.33 grams
on May 12, 2006; 27.69 grams on August 24, 2006; 84.36
grams on September 15, 2006; 165.68 grams on
September 26, 2006; and 246.10 grams on November 14,
2006. The undercover agent arranged the amount and
method of payment directly with Chavez. All of this
Nos. 07-2276 and 07-2353 9
information was provided by the undercover agent and
the Wisconsin crime laboratory which analyzed the drugs
and determined the weight of each purchase. Statements
by Panaigua-Verdugo corroborated the information.
Chavez had the opportunity to review the PSR and failed
to object to its contents.
This evidence was sufficient to support the district
court’s finding. The PSR establishes that Chavez
worked with a common accomplice over a short period
of time for the same purpose—the sale of increasingly
larger quantities of methamphetamine. The transactions
were repetitious in method and motive. The information
contained within the PSR was sufficiently reliable and
contained extensive information supported by witness
testimony. Chavez gives no reason for discrediting the
information contained within the PSR, and did not con-
tradict the evidence before the district court. Accordingly,
the district court did not err in finding that the other
drug transactions were “relevant conduct” for sen-
tencing purposes.
C. Consideration to § 3553(a) Sentencing Factors
Finally, Panaigua-Verdugo and Chavez both argue that
the district court failed to give meaningful consideration
to the § 3553(a) factors or adequately state its reasons
for imposing each defendants’ sentence.
We review sentences for reasonableness, using an
abuse of discretion standard. United States v. Shannon,
518 F.3d 494, 496 (7th Cir. 2008). A sentence that falls
within a properly calculated advisory guidelines range is
presumed reasonable. United States v. Omole, 523 F.3d 691,
696 (7th Cir. 2008) (citing Rita v. United States, ___ U.S. ___,
10 Nos. 07-2276 and 07-2353
127 S.Ct. 2456, 2462-63, 168 L.Ed.2d 203 (2007)). A sen-
tence is reasonable if the district court gives meaningful
consideration to the factors enumerated in § 3553(a) and
arrives at a sentence that is objectively reasonable in
light of the statutory factors and the individual circum-
stances of the case. Shannon, 518 F.3d at 496 (citing Gall
v. United States, 552 U.S. ___, 128 S.Ct. 586, 596-97, 169
L.Ed.2d 445 (2007)).
We address Chavez’s argument first, as Panaigua-
Verdugo adopts the argument in his brief. In reviewing
Chavez’s sentence, we consider whether the judge com-
mitted any procedural errors, such as failing to analyze
the § 3553(a) factors or failing to adequately explain the
chosen sentence. United States v. Gordon, 513 F.3d 659, 666
(7th Cir. 2008) (citing Gall, 128 S.Ct. at 597). The district
court need not address each § 3553(a) factor in check-
list fashion, explicitly articulating its conclusion for each
factor; rather, the court must simply give an adequate
statement of reasons, consistent with § 3553(a), for be-
lieving the sentence it selects is appropriate. Shannon,
519 F.3d at 496.
In sentencing Chavez at the bottom of the 108-135 month
advisory guideline range, the district court sufficiently
analyzed the § 3553(a) factors and explained the reasons
for Chavez’s sentence, including a consideration of the
seriousness of the offense. See § 3553(a)(1) and (2)(A).
While the district court did not address each § 3553(a)
factor, it was not required to do so. Chavez argues that
the court did not address his pleas for leniency, including
the negative effects that deportation would have on his
family. On the contrary, the district court directly ad-
dressed this issue, noting:
The sentence will be punishment, but the deportation
will be even greater punishment given the number of
Nos. 07-2276 and 07-2353 11
family members that you have in the United States.
I wish you’d thought of that before you got involved
in this criminal activity. Unfortunately you didn’t,
you did get involved and there is a punishment that
follows.
The district court engaged with Chavez’s concerns regard-
ing the effects that the sentence and subsequent deporta-
tion would have on his family. We find that the district
court’s statement of reasons was adequate, and in light
of these considerations, the court’s decision to impose a
sentence at the low end of the advisory guidelines range
was reasonable in light of § 3553(a).
We are reluctant to address Panaigua-Verdugo’s argu-
ment regarding the reasonableness of his sentence, con-
sidering that he cribs Chavez’s argument wholesale
without specifically examining how the argument applies
to his own sentencing hearing. Regardless, we find nothing
in the record to suggest that the district court failed to
consider the § 3553(a) factors in imposing Panaigua-
Verdugo’s sentence, and Panaigua-Verdugo presents
nothing to disturb the rebuttable presumption of reason-
ableness of his within-guidelines sentence. See Shannon,
518 F.3d at 496.
Accordingly, we AFFIRM the sentences of Panaigua-
Verdugo and Chavez.
8-8-08