United States v. Juan Flores-Olague

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2232
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JUAN F LORES-O LAGUE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 11-cr-136-bbc—Barbara B. Crabb, Judge.
A RGUED JANUARY 24, 2013—D ECIDED M AY 23, 2013
Before M ANION and W OOD , Circuit Judges, and
B ARKER, District Judge.Œ
B ARKER, District Judge. After pleading guilty to one
count of possession with intent to distribute cocaine
and one count of possession of a firearm in furtherance
of a drug trafficking crime, Juan Flores-Olague was sen-
Œ
The Honorable Sarah Evans Barker, United States District
Court for the Southern District of Indiana, sitting by designation.
2 No. 12-2232
tenced to 168 months of incarceration, followed by
three years of supervised release. This penalty incorpo-
rated a relatively recent sentencing enhancement under
U.S.S.G. § 2D1.1(b)(12) for “maintain[ing] a premises
for the purpose of manufacturing or distributing a con-
trolled substance.” Mr. Flores-Olague has timely ap-
pealed his sentence to challenge the application of this
enhancement to his punishment. Because we find no
merit in his arguments, we affirm his sentence.
I. BACKGROUND
In 2008, law enforcement officers identified Mr. Flores-
Olague as a potential large-scale distributor of cocaine,
which he had received from Miguel Gamez and sold out
of his southern Wisconsin residence. The Dane County
Narcotics and Gang Task Force eventually undertook
a plan to dismantle Mr. Flores-Olague’s operation using
a confidential informant and an undercover officer
to make a series of controlled purchases of cocaine. Be-
tween September 29, 2010 and November 16, 2011,
Mr. Flores-Olague sold a total of 39.1 grams of cocaine 1
to the law enforcement officers in seven separate trans-
actions. Each purchase took place at a house in Medina,
Wisconsin which, during the relevant time period,
was home to Mr. Flores-Olague, Modesta Santos (his
longtime girlfriend), and the couple’s teenage son.
1
This amount may not take into account the “tip” Mr. Flores-
Olague sometimes gave a purchaser, which consisted of an
additional small bag of cocaine.
No. 12-2232 3
Having marshaled sufficient probable cause based
on the foregoing transactions, officers obtained and
executed a search warrant for Mr. Flores-Olague’s resi-
dence on November 17, 2011. The search yielded nine
grams of cocaine packaged in eleven baggies, $53,620 in
cash, four firearms,2 ammunition, five cellular phones,
twenty-one money wire receipts, a concealment safe,
and various drug- and gang-related paraphernalia.
While other law enforcement officers were executing
the search warrant, Mr. Flores-Olague and Ms. Santos
were speaking with Marshall Police Department officers
in separate rooms at the department headquarters.
Mr. Flores-Olague waived his Miranda rights when
officers informed him that his residence was being
searched. After recanting his initial denial of having
firearms in the home, he also disclosed that he had pur-
chased and sold cocaine over a three-year period out of
his residence. During that time, he had distributed
cocaine on a daily basis, maintained a customer base of
at least ten regular buyers, and sold between two and
ten grams of cocaine per day. He further admitted that
he was in the United States illegally and had unlawfully
purchased a Social Security number.
Ms. Santos’s interview with law enforcement officers
supplied additional relevant facts consistent with those
recounted by Mr. Flores-Olague. To her knowledge,
2
Although law enforcement officers actually recovered
five firearms, only four of these firearms were found to be
connected to drug trafficking activity.
4 No. 12-2232
Mr. Flores-Olague worked part-time on a farm in ex-
change for free rent and had no other significant
or regular source of income. She also reported that
Mr. Flores-Olague was extremely domineering and
abusive—e.g., that he controlled all the basic activities
at their home, such as answering the door and tele-
phone, and that he relegated her to their son’s bedroom
when guests came to the home. Though she claimed to
have been unaware of any firearms in the residence,
she said that Mr. Flores-Olague had previously threat-
ened her with a gun. Ms. Santos’s statements to
law enforcement investigators are consistent with evi-
dence set out in the Presentence Investigation Re-
port (“PSR”) detailing Mr. Flores-Olague’s prior crim-
inal convictions for carrying a concealed weapon
and battery. (PSR at 10-11.)
On December 8, 2011, a grand jury in the Western
District of Wisconsin indicted Mr. Flores-Olague for
distributing a cocaine mixture, possessing a cocaine
mixture with intent to distribute, and possessing a
firearm in furtherance of a drug trafficking crime, in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c).
The first of these three counts was eventually dis-
missed on the government’s motion. In February 2012,
Mr. Flores-Olague agreed to plead guilty to the other
two counts in the indictment (the possession with
intent to distribute and the firearm charges) via a
written plea agreement. He appeared before the dis-
trict court on February 27, 2012, at which hearing the
court provisionally accepted the plea agreement pending
a thorough review of the PSR.
No. 12-2232 5
The PSR recommended a total offense level of
29. When preparing the report in accordance with
the November 2011 version of the advisory guidelines,
the probation officer computed a base offense level of 30
and then deducted three points for acceptance of respon-
sibility. Based on her conclusion that Mr. Flores-Olague
had operated his home as a “stash house,” the proba-
tion officer included that enhancement and recom-
mended a two-level increase. This sentencing guideline
enhancement, which applies to a defendant who “main-
tain[s] a premises for the purpose of manufacturing or dis-
tributing a controlled substance,” became effective on
November 1, 2010. U.S.S.G. § 2D1.1(b)(12) & App. C
amend. 748 (Nov. 1, 2010). Thus, the probation
officer computed Mr. Flores-Olague’s adjusted offense
level as 29. This level, combined with Mr. Flores-Olague’s
criminal history category of III, produced a recommended
sentencing range of 108 to 135 months for the drug
charge and 60 months consecutive for the firearm
charge.3 Mr. Flores-Olague objected to the § 2D1.1(b)(12)
enhancement on the grounds that he did not maintain
the subject premises for the sole purpose of selling
3
18 U.S.C. § 924(c) prescribes a mandatory minimum
penalty of five years of incarceration for possessing a firearm
in furtherance of a drug trafficking offense. This punishment
must be imposed to run consecutively with any other term
of incarceration, “including any term of imprisonment
imposed for the . . . drug trafficking crime during which
the firearm was used, carried, or possessed.” See id.§ 924(c)(1)(D)(ii).
6 No. 12-2232
drugs. The district court overruled his objection and
accepted the factual findings and calculations in the
PSR, which included the § 2D1.1(b)(12) enhancement
to Mr. Flores-Olague’s sentence.
Mr. Flores-Olague appeared for sentencing on May 11,
2012. When he renewed his objection to the § 2D1.1(b)(12)
enhancement on the basis that the residence was not
used exclusively as a “stash house,” the district court
again rejected his argument. The court observed, “The
point is that even though the defendant’s family lived
in the house with him, he stored and sold drugs
from that house for more than three years and did so on
a daily basis to regular customers.” (Tr. at 5.) The court
also concluded that the firearms, cocaine, and cash re-
covered from Mr. Flores-Olague’s home militated in
favor of the two-level enhancement. At that point,
the court declared that the § 2D1.1(b)(12) enhance-
ment would apply, noting specifically, “I’m only im-
posing the two-level increase because you maintained
the premises for the purpose of manufacturing or dis-
tributing a controlled substance.” (Tr. at 9, emphasis
supplied.)
The court next addressed the statutory purposes of
sentencing laid out in 18 U.S.C. § 3553(a). For purposes
of our review of Mr. Flores-Olague’s contention, infra,
that the district court’s discussion of the § 3553(a) factors
undermined the validity of his sentence, we reprise the
judge’s relevant comments:
You’re in the country illegally and you do not speak
English. You have a prior criminal record that
involves repeated instances of domestic abuse. You
No. 12-2232 7
continued to abuse women even after you were
granted a deferred prosecution in another case.
Despite probation terms and jail sentences, you have
continued to break the law.
You have one son and some employment history.
You’ve sold significant quantities of cocaine since
2008. A confidential informant told officers that you
had sold kilograms of cocaine out of your residence.
And of course a series of controlled buys were con-
ducted at your home which led to the discovery of
cocaine, cash, and four firearms.
Taking into consideration the nature of the offense,
as well as your personal history and characteristics,
I’m persuaded that a combined custodial sentence of
14 years is reasonable and no greater than necessary
to satisfy the statutory purposes of sentencing.
(Tr. at 10.) The judge concluded the hearing by imposing
a sentence of 168 months of incarceration (108 months
on Count Two and 60 months consecutive on Count
Three), followed by three years of supervised release
(with the special conditions recommended in the PSR).
Final judgment was entered on May 14, 2012, and
Mr. Flores-Olague filed his notice of appeal of his sen-
tence on May 22, 2012.
II. ANALYSIS
The sole issue Mr. Flores-Olague presents on appeal
is whether the district court erred in imposing the
U.S.S.G. § 2D1.1(b)(12) sentencing enhancement in con-
8 No. 12-2232
nection with Count Two of the indictment. His chal-
lenge in that context, however, is twofold. First, he con-
tends that this enhancement is factually inapplicable to
his case. Second, he argues that the district court’s com-
ments at his sentencing hearing “ventured too far from
the relevant record” and provided an insufficient basis
for the § 2D1.1(b)(12) enhancement. Our review of these
objections proceeds as follows: we review the district
court’s application of the U.S. Sentencing Guidelines
de novo and its underlying factual findings for clear
error. United States v. Dortch, 628 F.3d 923, 925 (7th
Cir. 2010).
We begin with a review of the district court’s factual
findings, which we may override “only if, after con-
sidering all the evidence, we cannot avoid or ignore a
‘definite and firm conviction that a mistake has been
made.’ ” United States v. Jackson, 598 F.3d 340, 344 (7th Cir.
2010) (quoting United States v. Burnside, 588 F.3d 511, 517
(7th Cir. 2009)). To that end, we note the district court’s
acceptance of the PSR’s key factual findings, which re-
flected that Mr. Flores-Olague had stored and sold
cocaine “for the past three years” to “ten regular cus-
tomers and . . . additional customers . . . [who came] to
his home to purchase” it and that “officers had located
four firearms in his home.” (PSR at 6.) Counsel for
Mr. Flores-Olague did not contest any of these facts at
sentencing. In fact, when requesting that a lesser sen-
tence be imposed, counsel asserted that her client “[was
not] . . . holding on to any of the firearms while he
No. 12-2232 9
was outside on his porch 4 conducting business.” (Tr. at 6.)
This comment tacitly validates the information in the
PSR as well as the findings made by the district
court at sentencing regarding the nature and extent of
Mr. Flores-Olague’s illegal drug dealing and gun posses-
sion. In light of counsel’s indirect concession and
Mr. Flores-Olague’s failure to interpose any objections
to the PSR’s findings, we cannot conclude that the
district court clearly erred in reaching its findings of fact.
Having no basis to set aside the district court’s
factual findings, we next review de novo the court’s ap-
plication of those facts to the elements of U.S.S.G.
§ 2D1.1(b)(12). This advisory guideline originated as
part of the Fair Sentencing Act of 2010, which was
enacted on August 3, 2010 to “restore fairness to [f]ed-
eral cocaine sentencing.” Pub. L. No. 111-220, 124 Stat.
2372, 2372 (2010). The statute vested emergency
authority to amend the advisory guidelines with the
U.S. Sentencing Commission. Id. § 8, 124 Stat. 2374. Pursu-
ant to that authorization, the Sentencing Commission
promulgated Emergency Amendment 748, which took
effect November 1, 2010. See U.S.S.G. App. C, Vol. III
at 374-81. This amendment, inter alia, revised the
4
In addition, we cannot say that the district court clearly
erred by failing to address whether any “porch activity” was
deemed to have occurred on the “premises.” The Supreme
Court recently confirmed the well-settled principle that a
porch is “the classic exemplar” of the home and a place “to
which the activity of home life extends.” Florida v. Jardines,
133 S. Ct. 1409, 1415 (2013) (citation omitted).
10 No. 12-2232
advisory guidelines’ Drug Quantity Table, directing a two-
level sentence enhancement “if . . . the defendant main-
tained an establishment for the manufacture or distrib-
ution of a controlled substance, as generally described
in . . . 21 U.S.C. § 856.” U.S.S.G. § 2D1.1(b)(12) (Supp.
Nov. 1, 2010); see also United States v. Miller, 698 F.3d
699, 705 (8th Cir. 2012). The amendment also included
Application Note 28 to guide courts’ implementation
of § 2D1.1(b)(12):
Subsection (b)(12) applies to a defendant who know-
ingly maintains a premises (i.e., a building, room,
or enclosure) for the purpose of manufacturing or
distributing a controlled substance.5
Among the factors the court should consider in de-
termining whether the defendant “maintained” the
premises are (A) whether the defendant held a
possessory interest in (e.g., owned or rented) the
premises and (B) the extent to which the defendant
controlled access to, or activities at, the premises.
Manufacturing or distributing a controlled sub-
stance need not be the sole purpose for which the
premises was maintained, but must be one of the
5
When this amendment was officially promulgated, the first
sentence was changed to read, “Subsection (b)(12) applies to
a defendant who knowingly maintains a premises . . . for
the purpose of manufacturing or distributing a controlled
substance, including storage of a controlled substance for
the purpose of distribution.” 76 Fed. Reg. 24,960, 24,963 (May 3,
2011).
No. 12-2232 11
defendant’s primary or principal uses for the prem-
ises, rather than one of the defendant’s incidental
or collateral uses for the premises. In making this
determination, the court should consider how fre-
quently the premises was used by the defendant
for manufacturing or distributing a controlled sub-
stance and how frequently the premises was used
by the defendant for lawful purposes.
U.S.S.G. § 2D1.1, comment. (n.28). Amendment 748 was
given retroactive effect in Amendment 750, which took
effect November 1, 2011. See 76 Fed. Reg. 41332-35 (July 13,
2011).
Because § 2D1.1(b)(12) refers to 21 U.S.C. § 856, we
include a review of the applicable provisions of this
statute as well. Colloquially known as the “crack-house
statute,” 21 U.S.C. § 856 makes it unlawful to “knowingly
open, lease, rent, use, or maintain any place, whether
permanently or temporarily, for the purpose of manufac-
turing, distributing, or using any controlled substance.”
21 U.S.C. § 856(a)(1); see Miller, 698 F.3d at 705; United
States v. Shetler, 665 F.3d 1150, 1162-63 (9th Cir. 2011);
United States v. Acosta, 534 F.3d 574, 591-92 (7th Cir. 2008).
Our court has addressed what it means to “maintain” a
stash house, in Acosta, 534 F.3d at 591, concluding
that 21 U.S.C. § 856 contemplates “[a] variety of factual
scenarios.” Specifically, we indicated that “an individual
‘maintains’ a drug house if he owns or rents premises,
or exercises control over them, and for a sustained
period of time, uses those premises to manufacture,
store, or sell drugs, or directs others to those premises to
12 No. 12-2232
obtain drugs.” Acosta, 534 F.3d at 591 (citing United
States v. McCullough, 457 F.3d 1150 (10th Cir. 2006) (defen-
dant “maintained” premises where drugs were located
and which she owned and considered her home);
United States v. Scull, 321 F.3d 1270 (10th Cir. 2003) (defen-
dant “maintained” premises where drugs were as-
sembled and which he owned)). We clarified that
although ownership is not dispositive of whether a de-
fendant “maintains” a stash house, the statute contem-
plates a defendant who is “more than a casual visitor.”
See id. Moreover, we determined that a defendant’s
drug trafficking activities at other locations were
irrelevant to the “maintaining the premises” inquiry so
long as customers knew they could—and did—purchase
drugs from the defendant at the premises in question. Id.Here, the government contends that our analysis
of “maintaining” a stash house for purposes of 21 U.S.C.
§ 856, as articulated in Acosta, should factor into our
interpretation of § 2D1.1(b)(12), and we agree. We can-
not accept Mr. Flores-Olague’s argument that such an
application would eviscerate Application Note 28’s
directive to consider the frequency of his drug traf-
ficking transactions. In fact, our 21 U.S.C. § 856 deci-
sions almost always involve the numerical extent of de-
fendants’ drug-related activities. E.g., United States v.
Sanchez, 710 F.3d 724, 731 (7th Cir. 2013); United States v.
Phillips, 239 F.3d 829, 836-37, 847 (7th Cir. 2001); United
States v. Rogers, 89 F.3d 1326, 1329-30 (7th Cir. 1996);
United States v. Church, 970 F.2d 401, 406 (7th Cir. 1992).
Likewise, we reject Mr. Flores-Olague’s assertion that
relying on 21 U.S.C. § 856 case law would make
No. 12-2232 13
§ 2D1.1(b)(12) available any time a defendant manu-
factures or distributes drugs on certain premises more
than a single time. Nevertheless, as we recently ob-
served in United States v. Sanchez, 710 F.3d 724, 729 (7th
Cir. 2013), “[Application Note 28]’s call to compare
the frequency of illegal and legal activities at premises
leads to odd results when the premises also serve as
a primary residence.” Sanchez stands as our first substan-
tive interpretation of § 2D1.1(b)(12) and binds us here,
supporting the imposition of the § 2D1.1(b)(12) enhance-
ment to Mr. Flores-Olague’s sentencing guidelines cal-
culation.
We note as well that the factual underpinnings of
Sanchez bear a striking resemblance to those presented
by Mr. Flores-Olague. In that case, the defendant pled
guilty (although not pursuant to a written plea agree-
ment) to the offense of conspiracy to possess with
intent to distribute more than five kilograms of a cocaine
mixture. Sanchez, 710 F.3d at 726. Over the course of
approximately two years, Mr. Sanchez received, stored,
and sold narcotics out of a rented home he shared
with several family members. Id. at 725-26. Other dis-
tributors and wholesalers sometimes came to his home
to purchase drugs and to settle financial matters related
to the drug dealing conspiracy. Id. at 732. As the largest
wholesaler for that particular drug ring, Mr. Sanchez’s
illicit activities boosted cocaine sales by that conspiracy
to the level of $2.5 million. His part involved exercising
substantial control over the premises, “hid[ing] the
drugs in the attic” away from family members, and
“quickly transferring them” whenever possible. Id. at 725.
14 No. 12-2232
Finally, like Mr. Flores-Olague, his only regular and
reliable source of income stemmed from proceeds of
drug trafficking activities. Id. at 732. All of the foregoing
facts persuaded us that Mr. Sanchez’s use of his home
for proscribed drug sales was more than “incidental”
or “collateral”—indeed, the quantity, scope, and impor-
tance of the sales rendered it a principal use of the pre-
mises. Accordingly, we upheld the district court’s ap-
plication of § 2D1.1(b)(12) to Mr. Sanchez’s already
lengthy prison sentence.
As noted in Sanchez, we again find informative and
persuasive the approach taken by the Eighth Circuit
in United States v. Miller, 698 F.3d 699 (8th Cir. 2012).
Miller involved a challenge to a § 2D1.1(b)(12) enhance-
ment based on the defendant’s use of the premises both
for drug dealing and as her family home. Miller, 698
F.3d at 705-06. Pursuant to the relevant U.S.S.G. applica-
tion note, the Eighth Circuit addressed the “frequency-of-
use” factor, referencing 21 U.S.C. § 856 as follows:
When the premises in question was the defendant’s
family home, by definition it was used for that
lawful purpose 100% of the time. Yet Congress in
enacting [21 U.S.C.] § 856 and in directing the Com-
mission to adopt § 2D1.1(b)(12) surely intended
to deter the manufacture and distribution of illegal
drugs in “crack houses” where children are being
raised. Thus, prior decisions have upheld [21 U.S.C.]
§ 856 convictions where [the] defendant used the
premises in question as a primary residence as
well as for substantial drug trafficking.
No. 12-2232 15
Id. at 707 (citing Shetler, 665 F.3d at 1163; McCullough, 457
F.3d at 1161; Church, 970 F.2d at 406). The court in Miller
broadened its inquiry to include consideration of a
variety of other factors germane to the scope of illicit
activities—quantities dealt, customer interactions, storage
of “tools of the trade,” maintenance of business records,
the use of a child to deliver narcotics, and acceptance
of payment—and as indicia that drug trafficking was
the principal use of the premises. Id. at 706-07.
Employing the approach taken in Sanchez and Miller,
we are left with virtually no doubt as to the proper out-
come here; considering both the frequency and sig-
nificance of the illicit activities conducted on the
premises, application of the § 2D1.1(b)(12) enhancement
to Mr. Flores-Olague’s sentence is clearly warranted. As
noted previously, the undisputed facts set out in
the PSR establish that Mr. Flores-Olague’s drug traf-
ficking was for him an everyday occurrence. In addition,
Mr. Flores-Olague neither contested the district court’s
factual findings that he sold and stored drugs at his
home nor denied that he did so “on a daily basis” over a
three-year period. Likewise, no other locations for drug
dealing appear of record, and Mr. Flores-Olague did
not attempt, as Miller did, to demonstrate that he
imposed any limitations on the times when he stored
or sold drugs at the premises. These facts, consid-
ered in light of the Sanchez and Miller frequency analyses
(two-year period and participation in three purchases, re-
spectively), lead us to conclude that the prohibited ac-
tivities that were conducted by Mr. Flores-Olague at
his home are sufficient to warrant the sentencing en-
hancement under § 2D1.1(b)(12).
16 No. 12-2232
It should be noted that in conducting this analysis,
our consideration of the frequency and significance of
illicit activities at the premises treats these factors “in
tandem” in the same way we did in Sanchez. That
Mr. Flores-Olague’s role may not have made him as
“renowned” in his enterprise as Sanchez or Miller were
in theirs does not foreclose a finding that his drug
sales were also “significant—in quantity, in scope, and
in importance to . . . [his] livelihood.” Sanchez, 710 F.3d
at 732. Further, we see no error in the district court’s
reliance on the $53,620 in currency found on the
premises along with the four firearms, five cellular
phones, and other paraphernalia, all of which were
also found in his home, to justify this enhancement. We
view Mr. Flores-Olague’s abusive and authoritarian
treatment of the home’s co-residents as further evi-
dence suggestive of his intent to control the home, its
residents, and all activities occurring there, both legal
and illegal. See United States v. Morgan, 117 F.3d 849, 858
(5th Cir. 1997) (proper to infer that defendant has “main-
tained” the premises “[w]here the evidence shows
that over a period of time the defendant can direct the
activities of and the people in a place”). And, while we
concede that his intermittent employment as a day laborer
corroborates a finding that to some extent he was engaged
in gainful activity other than drug dealing, the district
court’s conclusion that his primary source of livelihood
was his drug dealing is sound. Nothing supports a
finding that Mr. Flores-Olague’s use of the premises for
drug trafficking was incidental or collateral; to the con-
trary, the evidence in the record clearly establishes that
No. 12-2232 17
his home was used by him in major respects for drug-
related purposes. Thus, we reject his argument that
the § 2D1.1(b)(12) enhancement is factually inapposite.
Mr. Flores-Olague has also challenged the § 2D1.1(b)(12)
enhancement to his sentence on the basis that “the
district court’s comments at sentencing ventured too
far from the relevant record.” (Appellant Br. at 3.) Specifi-
cally, he contends, the district court in fashioning
his sentence improperly referenced his being a non-
English-speaking person, his status as an illegal
immigrant and father, and his history of domestic vio-
lence. Our Supreme Court has instructed that “a sen-
tencing judge should set forth enough to satisfy the
appellate court that [s]he has considered the parties’
arguments and has a reasoned basis for exercising [her]
own legal decisionmaking authority.” Rita v. United
States, 551 U.S. 338, 356 (2007). In keeping with this man-
date, the district judge is required to meaningfully
weigh the § 3553(a) factors, the advisory guidelines, and
the particular circumstances of each case. United States
v. Shannon, 518 F.3d 494, 496 (7th Cir. 2008). An exhaus-
tive recitation of the § 3553(a) factors is not required;
rather, “the court may simply give an adequate state-
ment of reasons, consistent with § 3553(a), for thinking
the sentence it selects is appropriate.” Id.
Even a cursory review of the sentencing hearing tran-
script before us makes abundantly clear that the
district judge fully satisfied the foregoing standard(s). In
fact, after reviewing the record, we regard Mr. Flores-
Olague’s arguments in this respect as “grasping at
18 No. 12-2232
straws.” We begin by correcting Mr. Flores-Olague’s
contention in his reply brief that the district court
judge announced his sentence following her comments
about his personal characteristics. In truth, the hearing
transcript reveals the following words as actually
having been spoken by the judge: “I’m only imposing the
two-level increase because you maintained the premises
for the purpose of maintaining or distributing a con-
trolled substance.” (Tr. at 9, emphasis supplied.) This
statement was made by the judge prior to any discus-
sion by her of the various factors set forth in 18 U.S.C.
§ 3553(a). (Tr. at 9-10.) Thus, this sequence makes clear
that the two-level enhancement was based exclusively on
§ 2D1.1(b)(12) and that the § 3553(a) factors mentioned
by the judge reflected a down-the-line guidelines analy-
sis. We find nothing improper about the district court’s
sentencing procedure; to the contrary, in terms of cor-
rectness and clarity, the way in which Judge Crabb con-
ducted this hearing provides a model of thorough, cogent,
and fair federal sentencing procedure.
To the extent that Mr. Flores-Olague cites various
cases in an effort to support his contention that the
district judge improperly included in her analysis his
personal characteristics, we reject these authorities as
off point. The relationship between the rulings in these
cases and the matter before us is attenuated at best,
and in any event fails to provide a basis for ignoring or
undermining the presumption of reasonableness to be
accorded a sentence that falls within a properly cal-
culated advisory guidelines range. United States v.
Block, 705 F.3d 755, 762 (7th Cir. 2013). For instance,
No. 12-2232 19
United States v. Figueroa, 622 F.3d 739 (7th Cir. 2010), does
not in any way bolster Mr. Flores-Olague’s argument.
There, the district court engaged in a distressingly inap-
propriate and irrelevant diatribe about illegal immigra-
tion, “lash[ing] out,” “occasionally referring to ‘you
people’ or ‘those people,’ ” even comparing that de-
fendant to Adolf Hitler. Figueroa, 622 F.3d at 743. In
United States v. Smith, 400 F. App’x 96 (7th Cir. 2010), the
district court accused the defendant of “ruining Mexico”
and contributing to “broader issues of urban decline.”
Smith, 400 F. App’x at 98. It is far-fetched to compare
such judicial intemperance to the comments made at
Mr. Flores-Olague’s sentencing by Judge Crabb, who
pertinently noted as matters of fact—not hyperbole—that
Mr. Flores-Olague “[was] in the country illegally and . . .
[did] not speak English.” Besides being true, these facts
are relevant to a fairly determined sentence because
they reflect the strength of the defendant’s ties to the
community as they relate to the likelihood of his
successful post-incarceration adjustments to society.
Accordingly, we reject Mr. Flores-Olague’s argument
that this single, isolated statement by the judge tainted
the fairness or appropriateness of the sentence that was
imposed.
We are similarly unpersuaded by Mr. Flores-Olague’s
assertion that the district judge allowed other imper-
missible factors to sway her judgment at sentencing.
A sentencing court is well within its prerogatives
and responsibilities in discussing a defendant’s status as
a deportable alien. United States v. Ramirez-Fuentes, 703
F.3d 1038, 1047 (7th Cir. 2013); United States v. Panaigua-
20 No. 12-2232
Verdugo, 537 F.3d 722, 728 (7th Cir. 2008). Again, this
factor is entirely germane to the defendant’s “history,”
which consideration is explicitly required of the district
judge under 18 U.S.C. § 3553(a)(1). Indeed, the scope of the
district court’s historical inquiry is permissibly broad so as
“to include ‘reliable evidence of wrongdoing for which the
defendant has not been charged or convicted.’ ” United
States v. Vitrano, 495 F.3d 387, 390 (7th Cir. 2007) (quoting
United States v. Nowicki, 870 F.2d 405, 407 (7th Cir. 1989)).
Evidence of a defendant’s violent past is also widely
regarded as relevant to a court’s 18 U.S.C. § 3553(a)
analysis. Vitrano, 495 F.3d at 389; see also United States
v. Escalante-Reyes, 689 F.3d 415, 438 (5th Cir. 2012);
United States v. Bryant, 462 F. App’x 589, 590 (6th Cir.
2012); United States v. Lee, 480 F. App’x 943, 945 (10th Cir.
2012); United States v. Foy, 617 F.3d 1029, 1037 (8th Cir.
2010). Given these statutory directives, we find no fault
in the district judge’s mention of “repeated instances
of domestic abuse,” which bears directly on Mr. Flores-
Olague’s criminal history and his likelihood of recid-
ivating, and provides corroboration of certain fact-
ual assertions made against him as part of this prosecu-
tion (i.e., the witness’s statements to law enforce-
ment attesting to such abuse).
Finally, Mr. Flores-Olague has failed to convince us
that the district judge’s statement about his deficient
English language skills was in any way untoward. To
advance such an argument, the defendant has to take
the remark entirely out of context, failing to note, for
example, that it references one of the seven § 3553(a)
factors that a judge is directed to consider during a sen-
No. 12-2232 21
tencing hearing. It is well-settled that a sentencing
judge “may ‘appropriately conduct an inquiry . . . largely
unlimited either as to the kind of information [s]he
may consider, or the source from which it might come.’ ”
Nowicki, 870 F.2d at 407 (quoting United States v. Nesbitt,
852 F.2d 1502, 1521 (7th Cir. 1988)). Thus, as discussed
previously, to accuse the district judge of harboring
some sort of prejudicial animus against him based on
this isolated remark is a bridge too far. Again, a defen-
dant’s ability to speak English falls squarely within
the purview of § 3553(a); it concerns his history and
characteristics, the likelihood of successful deterrence
from future criminal conduct, and his need for educa-
tional or vocational training while incarcerated. 18 U.S.C.
§§ 3553(a)(1), (a)(2)(B), (a)(2)(D). English language profi-
ciency can be and often is a useful predictor of whether
a defendant can fully assimilate in the culture in order
to become a productive member of society upon his
release, touching on his future success in putting
down roots, obtaining employment, obtaining driving
and voting privileges, and otherwise establishing a
stable, law-abiding existence in the United States.
When language is a barrier, a person so impeded is far
more likely to remain isolated in an existence in
which respect for the laws of the United States is
either irrelevant or holds little value. Each of these con-
siderations reinforces our conclusion that the district
judge made no inappropriate, prejudicial, or unlawful
comments at sentencing which improperly affected
her decision to impose the § 2D1.1(b)(12) enhancement
or to impose the sentence she determined to be rea-
22 No. 12-2232
sonable under all the appropriate circumstances of
Mr. Flores-Olague’s case.
III. CONCLUSION
Mr. Flores-Olague has not rebutted the presumption
that his properly calculated sentence of 168 months of
incarceration, followed by three years of supervised
release, was reasonable. The district judge commit-
ted no error in applying a two-level enhancement
to Mr. Flores-Olague’s sentence for “maintain[ing] a
premises for the purpose of manufacturing or dis-
tributing a controlled substance,” pursuant to U.S.S.G.
§ 2D1.1(b)(12), nor was the sentencing hearing con-
ducted in any way inconsistent with the dictates of 18
U.S.C. § 3553(a). The sentence imposed by the district
court is therefore A FFIRMED.
5-23-13