United States v. Victor Sainz-Preciado

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3706

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

V ICTOR S AINZ-P RECIADO,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 CR 381—Ronald A. Guzman, Judge.

A RGUED D ECEMBER 11, 2008—D ECIDED M AY 27,2009

Before M ANION, E VANS, and T INDER, Circuit Judges.

T INDER, Circuit Judge. Victor Sainz-Preciado pleaded

guilty to conspiracy and attempt to distribute more than

5 kg of cocaine, but the district court found that he was

responsible for more than 150 kg of cocaine for sentencing

purposes and imposed a 262-month sentence. On appeal,

Sainz-Preciado challenges the district court’s drug quantity

finding and application of the United States Sentencing

Guidelines. Finding no error in the court’s sentencing

determinations, we affirm Sainz-Preciado’s sentence.

2 No. 07-3706

I. Background

Sainz-Preciado and Juan Jose Mena-Aguayo participated

in an operation to distribute cocaine imported from

Mexico across the United States. Mena-Aguayo would

pick up cocaine shipments that arrived in Los Angeles and

drive them to Chicago, where Sainz-Preciado would

accept delivery. The two men agreed to make one such

delivery in April 2004. In Los Angeles, Mena-Aguayo

loaded 20 kg of cocaine into a secret compartment of

his SUV and began the drive to Chicago. He made it as far

as Iowa, where, on April 9, state police pulled him over

and discovered the drugs. When questioned by the state

police, Mena-Aguayo confessed that he had made

similar cocaine deliveries to Sainz-Preciado in Chicago

on two prior occasions. However, after the state police

turned him over to the Drug Enforcement Agency

(“DEA”), Mena-Aguayo changed his story, telling federal

agents that he had made nine prior deliveries to Sainz-

Preciado.

The DEA enlisted Mena-Aguayo’s help to catch Sainz-

Preciado in a controlled drug delivery, instructing Mena-

Aguayo to contact Sainz-Preciado as though he had

arrived in Chicago without incident. On April 10, in a

series of recorded conversations, Mena-Aguayo con-

tacted Sainz-Preciado and arranged to deliver the 20 kg

of cocaine that he had brought from Los Angeles. During

these conversations, the men were able to communicate

their whereabouts and plan the logistics of the delivery

using short, nondescript terms, apparently a code. For

example, in his initial phone call to Sainz-Preciado, Mena-

No. 07-3706 3

Aguayo stated that he had arrived at “the house,” and

Mena-Aguayo told Sainz-Preciado that he would meet

him “at the seafood.” Shortly after this call, both Sainz-

Preciado and Mena-Aguayo traveled separately to a

nearby Mexican seafood restaurant where they had

also met during prior drug transactions.

Upon arriving at the restaurant, Sainz-Preciado ex-

pressed surprise that Mena-Aguayo had brought “only 20”

kg of cocaine, implying that this amount was lower than

previous shipments. Sainz-Preciado then stated that he

would send his “buddy” to complete the transaction,

which Mena-Aguayo understood to mean that one of

Sainz-Preciado’s associates would arrive and take

physical delivery of the cocaine. Sainz-Preciado told Mena-

Aguayo to wait at the house while he left and contacted

his “guy” to collect the drugs.

Shortly after the men left the restaurant, Sainz-Preciado

called Mena-Aguayo and said that they needed to change

their delivery plans, as Sainz-Preciado feared that the

police were following him. Sainz-Preciado told Mena-

Aguayo to meet him “over here” where they had “bought

the tapes,” which Mena-Aguayo recognized as a

Walgreens store where the men had bought duct tape

to wrap the money collected from a previous drug deal.

Sainz-Preciado’s fears were, of course, justified, as

federal agents were monitoring his conversations with

Mena-Agauyo and tracking his movements. After Mena-

Aguayo met Sainz-Preciado at the Walgreens parking lot

and drove him into downtown Chicago, agents arrested

Sainz-Preciado.

4 No. 07-3706

On June 8, 2005, Sainz-Preciado pleaded guilty to con-

spiracy under 21 U.S.C. § 846 to distribute more than 5 kg

of cocaine, in violation of 21 U.S.C. § 841(a)(1), and at-

tempted possession with intent to distribute more than

5 kg of cocaine, in violation of 21 U.S.C. § 846 and 18 U.S.C.

§ 2. Prior to sentencing, Sainz-Preciado submitted his

“Version of Facts,” in which he claimed that he had

participated in only two drug deliveries with Mena-

Aguayo, including the April 2004 transaction that led to

his arrest. Sainz-Preciado also claimed that he was a

mere underling in the drug operation, taking his instruc-

tions from Victor Ley, Mena-Aguayo’s brother-in-law.

According to Sainz-Preciado, Ley called Sainz-Preciado

from Mexico and told him when Mena-Aguayo would

make a cocaine delivery, how to meet Mena-Aguayo

in Chicago, and who to call to take physical delivery of

the drugs. Sainz-Preciado also claimed that immigration

officials sent him back to Mexico following his March 31,

2003 arrest for illegal entry, meaning that he could not

have accepted deliveries from Mena-Aguayo from that

date until August 2003, when he made his way back

to Chicago.

At his August 7, 2007 sentencing hearing, Sainz-Preciado

declined to testify in support of his version of facts. Mena-

Aguayo, on the other hand, did testify for the govern-

ment and told a story that conflicted with Sainz-

Preciado’s version. Consistent with his confession to

DEA agents, Mena-Aguayo testified that he made a total

of ten cocaine deliveries to Sainz-Preciado between

March 2003 and April 2004, including the final, controlled

delivery. During each of these transactions, Sainz-Preciado

No. 07-3706 5

paid Mena-Aguayo $400,000 to $600,000 for 20 to 34 kg

of cocaine. Mena-Aguayo further testified that Sainz-

Preciado never accepted the shipment personally but, as

with the April 10, 2004 transaction, called various associ-

ates to pick up the drugs. As for Victor Ley’s purported

control over the Chicago operation, Mena-Aguayo ac-

knowledged that he worked for Ley and that Sainz-

Preciado was speaking to Ley on the phone throughout

the controlled delivery. However, Mena-Aguayo also

stated that Ley had nothing to do with the details of

picking up the drug shipments that arrived in Chicago.

To show that Sainz-Preciado and Mena-Aguayo had

developed a regular course of conduct for the cocaine

shipments, the government introduced the transcripts of

the April 10, 2004 conversations between the two men.

Referring to the transcripts, Mena-Aguayo explained that

he and Sainz-Preciado quickly recognized terms like

“house” and “seafood” because they had established

common meeting places from their nine prior drug deals.

They had also developed common delivery procedures;

by simply promising to “take care of things,” Sainz-

Preciado was able to communicate to Mena-Aguayo that

he was summoning his associates to pick up the drugs.

Faced with Sainz-Preciado’s and Mena-Aguayo’s con-

flicting claims regarding the number of drug deals, the

district court chose to credit Mena-Aguayo’s testimony

and concluded that Sainz-Preciado participated in nine

or ten cocaine deliveries between 2003 and 2004. The

court found Mena-Aguayo to be a convincing witness,

noting that he testified against penal interest by ad-

6 No. 07-3706

mitting his own involvement in the multiple drug deliver-

ies. Based on nine or ten shipments each involving 20 kg

or more of cocaine, the court determined that the drug

quantity attributable to Sainz-Preciado for sentencing

purposes was more than 150 kg of cocaine. Under the

United States Sentencing Guidelines, that quantity

resulted in a base offense level of 38. U.S. Sentencing

Comm’n, Guidelines Manual § 2D1.1(c)(1) (2004).

The court also concluded that Sainz-Preciado exercised

managerial control over at least two associates, as he

instructed these individuals when and where to take

delivery of the cocaine shipments. In light of that

finding, the court added three levels to Sainz-Preciado’s

offense level for his role as a “manager or supervisor” of

the criminal activity. U.S.S.G. § 3B1.1(b). Correspondingly,

the court rejected Sainz-Preciado’s request for a two-

level “safety valve” reduction in his offense level, which

is available for only those drug offenders who (among

other things) do not act as a “manager” or “supervisor” in

the offense. U.S.S.G. § 5C1.2(a)(4); see also id. § 2D1.1(b)(7)1

(providing a two-level deduction for defendants who

meet the criteria of § 5C1.2(a)). Finally, because Sainz-

Preciado pleaded guilty to the charged offenses, the court

1

Under the most recent 2008 edition of the Guidelines, this

cross-reference to § 5C1.2(a) appears in § 2D1.1(b)(11), not

§ 2D1.1(b)(7). This opinion cites Guidelines section numbers

as they appeared in the 2004 edition under which Sainz-

Preciado was sentenced. With respect to all other applicable

Guidelines provisions, the 2004 and 2008 editions contain

no differences in section numbers.

No. 07-3706 7

granted a two-level reduction under § 3E1.1(a) of the

Guidelines for acceptance of responsibility. The govern-

ment did not request an additional one-level reduction

under § 3E1.1(b), and Sainz-Preciado did not contest

the government’s failure to do so.

The resulting total offense level of 39, along with Sainz-

Preciado’s category I criminal history, yielded an advisory

Guidelines sentencing range of 262-327 months. The

district court, acknowledging Sainz-Preciado’s lack of

criminal history but emphasizing the seriousness of

distributing such large quantities of cocaine, imposed

minimum-Guidelines sentences of 262 months for both

the conspiracy and attempted possession offenses, to

run concurrently.

On appeal, Sainz-Preciado challenges the district

court’s findings that he was responsible for more than

150 kg of cocaine and that he qualified as a manager of the

drug operation. Sainz-Preciado also claims that he was

entitled to a two-level “safety valve” reduction under

§ 5C1.2(a) and an additional one-level reduction for

acceptance of responsibility under § 3E1.1(b). Finally,

Sainz-Preciado argues that his 262-month sentence is

unreasonable.

II. Analysis

A. Drug Quantity Finding

After crediting Mena-Aguayo’s testimony that Sainz-

Preciado participated in ten drug deliveries, the district

court determined that Sainz-Preciado’s “relevant conduct”

8 No. 07-3706

for sentencing purposes, U.S.S.G. § 1B1.3(a)(1), included

the distribution of more than 150 kg of cocaine. We

review the district court’s finding as to drug quantity

for sentencing purposes for clear error. United States v.

Romero, 469 F.3d 1139, 1147 (7th Cir. 2006), vacated on

other grounds, 128 S. Ct. 858 (2007) (mem.).

The district court had to choose between Mena-Aguayo’s

story that he made ten cocaine deliveries and Sainz-

Preciado’s story that he accepted only two deliveries.

Given these “two permissible views of the evidence,” the

court’s choice to credit Mena-Aguayo’s testimony is not

clearly erroneous. United States v. Hatten-Lubick, 525 F.3d

575, 580 (7th Cir. 2008). The court simply found that Mena-

Aguayo’s testimony was more credible than Sainz-

Preciado’s uncorroborated version of facts, and that

credibility finding is entitled to our “great, although

not absolute, deference.” United States v. Fox, 548 F.3d 523,

529 (7th Cir. 2008). Further, the court appropriately relied

on the fact that Mena-Aguayo testified against penal

interest by admitting to his own participation in the ten

drug deliveries. See United States v. Mancillas, 183 F.3d

682, 710 (7th Cir. 1999) (upholding a determination

that the witness was credible based in part on the wit-

ness’s self-inculpatory testimony). The government also

corroborated Mena-Aguayo’s testimony with the

recorded April 10, 2004 conversations between Sainz-

Preciado and Mena-Aguayo. See Romero, 469 F.3d at 1148

(noting that a DEA agent’s testimony corroborated a co-

defendant’s testimony on his drug dealings with the

defendant); United States v. Hankton, 432 F.3d 779, 792 (7th

Cir. 2005) (finding that co-defendants’ plea agreements

No. 07-3706 9

establishing the defendant’s involvement in multiple

drug transactions were fully corroborated by an FBI

agent’s testimony). This evidence demonstrated that the

two men had developed simple, shorthand, coded terms

to refer to common meeting places and delivery proce-

dures, implying a longstanding pattern and relationship.

Sainz-Preciado argues that Mena-Aguayo’s testimony

lacked sufficient corroboration, such as evidence re-

garding the disposition of the $200,000 that Mena-Aguayo

supposedly earned from his ten deliveries or hotel

receipts from his ten road trips to Chicago. However, this

purported lack of corroboration did not prevent the

district court from crediting Mena-Agauyo’s testimony,

especially since that testimony was in fact significantly

corroborated by the recorded conversations between Sainz-

Preciado and Mena-Aguayo. See United States v. Johnson,

489 F.3d 794, 798 (7th Cir. 2007). Rather than simply

listing ways that the government could have more fully

corroborated Mena-Aguayo’s testimony, Sainz-Preciado

“must present evidence which would in some way rebut

that testimony or demonstrate that is inaccurate” in

order to show that the district court erred. Hankton, 432

F.3d at 793. He failed to do so.

Sainz-Preciado also points to his March 31, 2003 arrest

for illegal entry and alleged removal to Mexico, claiming

that he was out of Chicago from that time until

August 2003 and therefore incapable of accepting de-

liveries from Mena-Aguayo. Even assuming that immigra-

tion officials actually removed Sainz-Preciado from the

United States (the record does not establish this fact), his

10 No. 07-3706

April-August 2003 absence is not necessarily inconsistent

with Mena-Aguayo’s testimony that he accepted ten

cocaine deliveries at various times between March 2003

and April 2004.

To be sure, Mena-Aguayo was not unimpeachable, as he

under-reported his drug distribution history to the Iowa

police following his arrest (an inaccuracy that defense

counsel highlighted in his cross-examination of Mena-

Aguayo). Nonetheless, a district court may credit testi-

mony that is “totally uncorroborated and comes from an

admitted liar, convicted felon, or large scale drug-dealing

paid government informant.” Johnson, 489 F.3d at 797

(quoting Romero, 469 F.3d at 1147). In sum, then, faced

with Mena-Aguayo’s sworn, unrebutted testimony and

Sainz-Preciado’s unsworn, uncorroborated version of

facts, the district court did not clearly err in crediting

Mena-Aguayo’s testimony and holding Sainz-Preciado

responsible for nine or ten cocaine deliveries.

B. Enhancement for Managerial Role

Under U.S.S.G. § 3B1.1(b)

Sainz-Preciado next challenges the district court’s

application of a three-level enhancement under U.S.S.G.

§ 3B1.1(b) for his role as a manager in the offense. Like

findings of drug quantity, we review the district court’s

finding that the defendant exercised a managerial role

for clear error. United States v. Howell, 527 F.3d 646, 649

(7th Cir. 2008).

Under § 3B1.1 of the Guidelines, a defendant receives a

four-level enhancement for participation as an “organizer

No. 07-3706 11

or leader” of a criminal activity “that involved five or

more participants or was otherwise extensive,” and a three-

level enhancement for participation as a “manager or

supervisor” of such a criminal activity. U.S.S.G. § 3B1.1.

The district court determined that Sainz-Preciado was

subject to a three-level enhancement as a “manager or

supervisor” because he controlled at least two

individuals who took physical delivery of the cocaine

shipments.

The district court’s application of § 3B1.1 finds sufficient

support in Mena-Aguayo’s testimony that Sainz-Preciado,

rather than accepting the cocaine shipments personally,

directed his associates to pick up the drugs. We have

recognized that a drug dealer’s delegation of delivery

or payment tasks may warrant the imposition of a § 3B1.1

enhancement. See Fox, 548 F.3d at 529-30 (upholding a

§ 3B1.1 enhancement for a defendant who arranged the

time and location of a drug sale but directed a subordinate

to make actual delivery); United States v. Martinez, 520

F.3d 749, 752 (7th Cir. 2008) (finding no error in classifying

as a manager a defendant who hired individuals to trans-

port and accept substantial drug shipments); Johnson,

489 F.3d at 796, 798-99 (upholding a § 3B1.1 enhancement

for a defendant-seller who dispatched subordinates to

deliver drugs and collect payments). Accordingly, the

district court did not clearly err in concluding that Sainz-

Preciado’s use of “runners” to take actual possession of

the cocaine after he finalized the logistics of the delivery

made him a manager of the criminal activity. See Hatten-

Lubick, 525 F.3d at 580-81.

12 No. 07-3706

Sainz-Preciado argues that the district court erred in

finding that he controlled the drug runners because it

was Victor Ley, the leader of the entire drug operation,

who instructed him on who to call to pick up the cocaine.

According to Sainz-Preciado, the court’s § 3B1.1(b) en-

hancement lacks any evidentiary basis because the

only relevant government evidence, Mena-Aguayo’s

testimony, was not inconsistent with Sainz-Preciado’s

claim that Ley controlled his activities from Mexico.

First, Sainz-Preciado mischaracterizes Mena-Aguayo’s

testimony by suggesting that it was fully consistent with

Sainz-Preciado’s claim that Ley controlled the Chicago

drug deliveries. While Mena-Aguayo acknowledged that

Ley was a leader of the drug operation, he also testified

that Sainz-Preciado was “doing his thing” out in Chicago

and that Ley had “nothing to do” with the drug pickups.

Further, even if Mena-Aguayo’s testimony did not

directly contradict Sainz-Preciado’s claim that Ley con-

trolled his activities, it unquestionably contradicted Sainz-

Preciado’s claim that he participated in only two cocaine

shipments. So by crediting Mena-Aguayo’s testimony,

the district court necessarily found that Sainz-Preciado

was a liar with respect to the critical question of how

many drug deliveries the two men completed. Having

discredited such an important part of Sainz-Preciado’s

version of facts, the court was free to discount Sainz-

Preciado’s version in its entirety. Finally, assuming that

Ley did in fact tell Sainz-Preciado who to call to pick up

the cocaine, Sainz-Preciado’s resulting status as a mere

middleman would not make him “immune from applica-

tion of § 3B1.1.” Howell, 527 F.3d at 649 (quoting United

No. 07-3706 13

States v. Brown, 944 F.2d 1377, 1381 (7th Cir. 1991)). It is

Sainz-Preciado’s “relative responsibility and control over

other participants” that qualifies him as a manager, id.,

and the evidence shows that Sainz-Preciado coordinated

the activities of Mena-Aguayo and the drug runners. The

district court did not clearly err in applying a § 3B1.1(b)

enhancement for Sainz-Preciado’s role as a manager.

In affirming the district court’s managerial control

finding, we necessarily reject Sainz-Preciado’s argument

that the court erred in denying his request for a two-level

“safety-valve” reduction. U.S.S.G. §§ 2D1.1(b)(7), 5C1.2(a).

Since one criterion for safety-valve relief is that the defen-

dant was not a “manager” or “supervisor” in the offense,

id. § 5C1.2(a)(4), Sainz-Preciado’s § 5C1.2 argument fails

along with his § 3B1.1 argument. Moreover, since the

district court found that Sainz-Preciado falsely claimed

that he participated in only two drug deliveries, Sainz-

Preciado fails § 5C1.2(a)’s additional requirement that

he truthfully provide the government with “all informa-

tion” concerning his offense conduct. U.S.S.G. § 5C1.2(a)(5).

C. Acceptance of Responsibility Under

U.S.S.G. § 3E1.1(b)

Sainz-Preciado also claims that, in addition to the two-

level reduction in his offense level that he received

under § 3E1.1(a) for acceptance of responsibility, he

should have received an additional one-level reduction

under § 3E1.1(b). The latter subsection directs the dis-

trict court to decrease the defendant’s offense level an

additional level:

14 No. 07-3706

upon motion of the government stating that the

defendant has assisted authorities in the investiga-

tion or prosecution of his own misconduct by

timely notifying authorities of his intention to

enter a plea of guilty, thereby permitting the

government to avoid preparing for trial and per-

mitting the government and the court to allocate

their resources efficiently . . . .

U.S.S.G. § 3E1.1(b). The critical problem with Sainz-

Preciado’s § 3E1.1(b) claim is that the government never

made a motion for a third-point reduction. We, along

with every other circuit to consider the issue, have

held that the government motion is a necessary prerequi-

site to a § 3E1.1(b) reduction. United States v. Pacheco-Diaz,

506 F.3d 545, 552 (7th Cir. 2007) (“[T]he district court may

not grant the third level reduction for acceptance of

responsibility absent a motion by the government.”). That

rule reflects a 2003 congressional amendment to § 3E1.1(b)

that added the “upon motion of the government” lan-

guage, indicating Congress’s intent to leave third-point

reductions to the government’s discretion. Prosecutorial

Remedies and Tools Against the Exploitation of Children

Today (“PROTECT”) Act of 2003, Pub. L. No. 108-21,

§ 401(g)(1)(A), 117 Stat. 650, 671 (2003); see also United

States v. Beatty, 538 F.3d 8, 13-14 (1st Cir. 2008) (discussing

the 2003 amendment and joining every other circuit to

hold that a reduction under the amended version of

§ 3E1.1(b) is contingent on the government’s motion).

Sainz-Preciado suggests that the government’s failure

to move for a third-point reduction in this case was a

No. 07-3706 15

mere oversight, resulting in part from Sainz-Preciado’s

own failure to explicitly request a § 3E1.1(b) motion in

the proceedings below. We disagree. As the government

forcefully argues on appeal, it declined to move for a third-

point reduction because Sainz-Preciado never fully ac-

cepted responsibility by admitting his involvement in all

ten drug transactions. So while Sainz-Preciado’s early

guilty plea spared the expense of a trial, the govern-

ment still had to prepare Mena-Aguayo’s testimony and

other evidence to prove the full scope of Sainz-Preciado’s

criminal conduct at the sentencing hearing. This added

burden to both the government and the court system

gave the government good reason (if it needed one) not

to file a § 3E1.1(b) motion.

D. The Reasonableness of Sainz-Preciado’s Sentence

Finally, Sainz-Preciado argues that his sentence is

unreasonable because the district court failed to meaning-

fully consider the sentencing factors of 18 U.S.C. § 3553(a).

We review the reasonableness of a sentence under an

abuse of discretion standard. United States v. Shannon,

518 F.3d 494, 496 (7th Cir. 2008). The district court abuses

its discretion by “failing to consider the § 3553(a) factors”

when selecting a sentence. Gall v. United States, 128 S. Ct.

586, 597 (2007). However, the court need not “discuss and

make findings as to each of these factors,” as long as “the

record confirms meaningful consideration of the types

of factors that section 3553(a) identifies.” United States v.

Laufle, 433 F.3d 981, 987 (7th Cir. 2006); see also Shannon,

518 F.3d at 496 (“The court need not address every

16 No. 07-3706

§ 3553(a) factor in checklist fashion, explicitly articulating

its conclusions regarding each one.”).

The district court did not discuss the § 3553(a) factors

at Sainz-Preciado’s sentencing hearing. Nonetheless, the

reasons that the court gave in support of its sentencing

decision “reflect consideration of the types of factors

identified in section 3553(a).” Laufle, 433 F.3d at 987. The

court rejected defense counsel’s argument that Sainz-

Preciado was merely the pawn of drug lord Victor Ley,

concluding instead that Sainz-Preciado knowingly ac-

cepted the risks and monetary benefits of dealing in

large quantities of cocaine. See 18 U.S.C. § 3553(a)(1)

(directing sentencing courts to consider “the nature and

circumstances of the offense”). The court also seriously

considered the possibility of choosing a below-

Guidelines sentence based on Sainz-Preciado’s lack of

criminal history. See id. (“the history and characteristics

of the defendant”). Ultimately, however, the court felt

that it could not overlook Sainz-Preciado’s “continuing

effort to peddle large amounts of poison for large

amounts of money.” See id. § 3553(a)(2)(A) (the need for

the sentence “to reflect the seriousness of the offense”); id.

§ 3553(a)(2)(C) (the need for the sentence “to protect

the public from further crimes of the defendant”).

Because the court’s stated reasons for choosing Sainz-

Preciado’s sentence reflect a meaningful consideration of

the § 3553(a) factors, the sentence is reasonable notwith-

standing the court’s failure to explicitly discuss those

factors. That is especially true since the 262-month sentence

selected by the court was at the low end of Sainz-

No. 07-3706 17

Preciado’s 262-327 month advisory Guidelines range;

sentences that fall within the Guidelines range receive

an appellate presumption of reasonableness. Laufle,

433 F.3d at 987. Sainz-Preciado has not rebutted this

presumption by pointing to specific, substantial sen-

tencing arguments that the district court failed to

address, and he cannot rely on the simple declaration

that “the court did not address any of the § 3553(a) fac-

tors.” Martinez, 520 F.3d at 753.

Conclusion

For the foregoing reasons, we A FFIRM Sainz-Preciado’s

sentence.

5-27-09