United States v. Jose Medina-Mendoza

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2403

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

JOSE M EDINA M ENDOZA,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 3:06-cr-50070-1—Frederick J. Kapala, Judge.

A RGUED M AY 8, 2009—D ECIDED A UGUST 12, 2009

Before C UDAHY, M ANION, and T INDER, Circuit Judges.

T INDER, Circuit Judge. Jose Medina Mendoza was

charged along with Jose Luis Rodriguez and Samuel

Perez with a cocaine conspiracy. Perez and Rodriguez

also were charged with related drug offenses. They pled

guilty to the conspiracy charge, but Mendoza took his

chances with a jury and was convicted. The district court

imposed a sentence of 120 months, near the upper end

of the advisory Guidelines range of 97 to 121 months.

2 No. 08-2403

Mendoza challenges only his sentence on appeal, and we

affirm.

I. Background

In 2006, Drug Enforcement Agency Special Agent

Robert Lukens was assigned to the Metropolitan Enforce-

ment Team and deployed to Rockford, Illinois. Lukens

was working in an undercover capacity and, in that

capacity, he made three controlled purchases of cocaine

from Samuel Perez on September 19 and 28 and October 11.

Lukens bought approximately one ounce of cocaine in the

first two transactions. On the 11th, Lukens bought four

ounces. At the end of that transaction, Lukens inquired

about purchasing a larger amount of cocaine—a quarter

or a half kilogram. Perez responded, “Let me find

out, and I’ll let you know.” Lukens understood Perez

to mean that Perez needed to check with his source

of supply.

On November 2, 2006, Lukens called Perez around

12:23 p.m. and asked if he could buy a half kilogram of

cocaine for $9,000. Perez said that he would have to

“talk to his guy” or “his friend,” which Lukens under-

stood meant that Perez had to talk to his source. Lukens

and Perez agreed to talk again later that day after

Perez had talked to his friend.

Lukens and Perez had telephone conversations at

1:35 p.m. and 2:18 p.m. that afternoon. During the first of

these conversations, Perez told Lukens that he needed a

bit of time to obtain the half kilogram of cocaine and that

No. 08-2403 3

he would call Lukens back. Lukens understood Perez

to mean that he would have to talk to his source. Lukens

and Perez discussed $9,000 for cheaper cocaine—cocaine

that was diluted and cut—and $10,500 for “the good

stuff”—higher quality cocaine. Perez said he could give

Lukens the “same kind” (quality) of cocaine he sold him

the last time, but it would take time for Perez to get the

“good stuff.” During the second call, Perez reported that

he couldn’t get the $9,000 half kilogram that day

because “[t]he other guy, he’s not ready,” but Perez could

get the $10,500 half kilogram right away—in about

one hour. Lukens agreed to buy the cocaine that was

available that day. He told Perez that “[n]ext time I need

a money break,” to which Perez responded, “Alright . . .

we can talk in person later.” Lukens and Perez arranged

for the transaction to take place later that day. During

the 2:18 p.m. call, Perez also was talking to another

man who said he had to go and if he didn’t bring “the

caddie” that day, he’d bring it tomorrow.

Lukens and Perez met later that afternoon. Perez deliv-

ered the cocaine to Lukens and was promptly arrested.

Lukens interviewed Perez after his arrest. During the

interview, the cell phone that had been taken from

Perez repeatedly rang and the display on the phone

said “Chico Che.” Lukens testified that this happened

approximately half a dozen times.

Perez consented to a search of his apartment, so Lukens

and other officers went to Perez’s apartment. Mendoza

opened the door and said that he was “Chico Che.” Inside

Perez’s apartment, the officers found two presses used to

4 No. 08-2403

“re-press” cocaine into kilogram bricks after the

cocaine had been mixed with cutting agents. Both

presses had powder residue on them which later tested

positive for the probable presence of cocaine. The

officers also found Mendoza’s cell phone. Its call log

showed several outgoing calls to Perez. Mendoza was

arrested.

Mendoza, Perez, and Rodriguez were later charged

with conspiracy to possess with intent to distribute and

to distribute more than 500 grams of mixtures containing

cocaine. Perez and Rodriguez also were charged with

related drug offenses. Perez and Rodriguez pled guilty

to the conspiracy charge. Perez was sentenced in Septem-

ber 2007 to 72 months’ imprisonment. Rodriguez failed

to surrender as required and a warrant was issued

for his arrest. Rodriguez was sentenced in abstentia in

December 2007 to 66 months’ imprisonment. Mendoza

was tried by a jury in February 2008.

Perez testified at Mendoza’s trial. Perez stated that on

November 2, 2006, when he told Lukens that he needed

to “ask somebody” for the half kilogram of cocaine, he

didn’t have the cocaine himself and he intended to ask

Mendoza. Perez testified that after he talked with Lukens,

he and Mendoza went to Rodriguez’s house to get the

half kilogram of cocaine. Mendoza, Perez, and Rodriguez

cut the half kilogram off a kilogram piece of cocaine.

Perez was given the half kilogram. He didn’t pay for the

cocaine at that point. According to Perez, he was supposed

to sell the half kilogram to the “white guy”—Lukens—and

then return to Rodriguez’s house and give the money

to Mendoza and Rodriguez.

No. 08-2403 5

Perez’s trial testimony is supported by factual state-

ments in his written plea agreement and his statements

under oath at his change of plea hearing. Perez admitted

in his plea agreement that he conspired with Mendoza

and Rodriguez to possess with intent to distribute and to

distribute more than 500 grams of cocaine. He also ad-

mitted that Mendoza—whom he knew by his nickname

“Chico Che”—was his source of supply for the cocaine

for the November 2 delivery. And Perez admitted that

he intended to sell the cocaine he received from Mendoza

“on credit” to Lukens and provide Mendoza with the

money for the cocaine, less Perez’s profit. At his change

of plea hearing, Perez testified that the facts set forth in

his plea agreement were true, thus identifying Mendoza

as the source of supply for the November 2 transaction.

Jaime Rodriguez, Rodriguez’s wife, testified at

Mendoza’s trial. She stated that in November 2006,

she lived with her husband and children at 510 Gregory

Street. She knew Mendoza and knew that he used the

name “Chico Che.” Jaime saw Mendoza at her house

once, on November 2, the same day law enforcement

officers searched her house and found one and a half

kilograms of cocaine. When she arrived home from

work at 5:15 p.m. that day, Chico Che and her husband

were at the house. She saw Mendoza on his phone and

heard him tell Rodriguez that he was trying to call

“Charchai”—Perez. Jaime heard Mendoza tell Rodriguez

that Perez robbed him of his dope. Mendoza asked Rodri-

guez for a ride, and the two left the house together.

Sara Hernandez, who had dated Perez, testified at

Mendoza’s trial as well. According to Hernandez, on

6 No. 08-2403

November 2, she tried to call Perez on his cell phone

several times, but was unable to reach him. Around

11:00 p.m., Sara went to Perez’s apartment where she

talked to Mendoza. She told Mendoza that she’d been

trying to call Perez, but he never answered the phone.

Sara asked Mendoza if he knew what was going on, and

Mendoza responded that he didn’t know where Perez

was. Mendoza added that he was scared that Perez

had been pulled over because he hadn’t answered his

phone or returned Mendoza’s calls. Mendoza also

stated that he was scared that Perez was playing games

with him. Sara asked him, “What kind of games?” and

Mendoza answered, “To run away with my money.”

According to the Presentence Investigation Report

(PSR), in a post-arrest interview given on November 2,

2006, Perez told police officers that he knew Mendoza

and knew that he sold “a lot” of cocaine that he brought

from Mexico. The PSR indicated that Perez said in the

interview that he ran into “Chico Che” at a gas station

earlier that morning and asked Mendoza if he would get

Perez a half kilogram of cocaine. Mendoza initially de-

clined, but then agreed. According to Perez, Mendoza

directed him to go to 510 Gregory Street in Rockford,

where Mendoza would wait with Rodriguez for Perez.

Perez did as he was instructed. When Perez arrived at

Rodriguez’s house, Mendoza, Rodriguez and Perez

went into the basement. They cut and weighed a half

kilogram of cocaine and agreed that Perez would contact

Mendoza when he had the money. Perez told the detec-

tives that he agreed to give Mendoza $9,000 for the

half kilogram of cocaine.

No. 08-2403 7

In later pre-trial interviews Perez’s story changed. On

January 24, 2008, he first claimed that Mendoza was the

source for the cocaine for all four transactions with

Lukens. Perez later contradicted himself and claimed

that “Pelon” was his source for the first three trans-

actions, but still maintained that Mendoza was the

source for the half kilogram he sold Lukens on Novem-

ber 2 and the one and one-half kilograms found at Rodri-

guez’s house. At a previous time, Perez had claimed

Pelon delivered the cocaine to him on Mendoza’s behalf.

However, in a January 30, 2008 pre-trial interview, Perez

stated that the half kilogram as well as the cocaine

found in Rodriguez’s house belonged to Rodriguez, not

Mendoza. Perez claimed he had said Mendoza was his

source because a detective had told him that was what

the detective wanted him to say and if Perez did so, the

detective would release him from custody.

The PSR indicates that Rodriguez was interviewed

on November 3, 2006. In his post-arrest statement, Rodri-

guez said that Mendoza arrived from Mexico around

October 31, 2006, and asked Rodriguez to keep two kilo-

grams of cocaine for him in exchange for $100. Rodriguez

stated that he was “really short on money” and agreed.

Rodriguez reiterated in his written plea agreement that

he agreed to allow Mendoza to store two kilograms of

cocaine at his house for $100. As related in the PSR,

Rodriguez also said during his post-arrest interview

that on November 2, Mendoza and Perez came to his

house and informed him that they were taking a half

kilogram of the cocaine. According to Rodriguez’s state-

ment, after the cocaine was cut and weighed, Perez left

8 No. 08-2403

with it, telling Mendoza he would return in one hour

with the money. These facts, too, are essentially reiterated

in Rodriguez’s written plea agreement. Rodriguez also

indicated in his post-arrest interview that later on Novem-

ber 2 Mendoza began calling Perez and saying things to

the effect that Perez had robbed him of the cocaine

because he had not returned with the money. According

to Rodriguez’s statement, Mendoza left Rodriguez’s

house, saying that he would return the next day to get

the rest of the cocaine. Rodriguez did not testify at

Mendoza’s trial; he was still a fugitive.

Mendoza’s PSR recommended a two-level enhancement

under U.S.S.G. § 3B1.1(c) for Mendoza’s role in the of-

fense. The recommendation was based on the fol-

lowing: (1) Mendoza provided Perez with the cocaine 1

and, therefore, claimed the right to a larger share of the

proceeds of the sale of the cocaine; and (2) Mendoza

recruited Rodriguez to store the approximately two

kilograms of cocaine in Rodriguez’s basement. The PSR

indicated that it appeared that Rodriguez would not

have been involved in the offense had Mendoza not

recruited him to store the cocaine for Mendoza.

Over Mendoza’s objection, the district court applied

the two-level enhancement under U.S.S.G. § 3B1.1(c). The

court first inferred that Perez was subject to Mendoza’s

1

The PSR actually says “[t]he defendant provided Mendoza

with the cocaine,” but this is an obvious error since Mendoza

is the defendant. The factual narrative describing the offense

reflects that “Perez” should have been used here instead.

No. 08-2403 9

control as to the sale price of the cocaine. This inference

was drawn from the evidence that prior to Perez’s arrest

on November 2, 2006, Lukens twice spoke on the

phone with Perez. In the first call, Lukens asked Perez if

he could purchase one-half kilogram for $9,000, and

Perez said he didn’t know, he would have to talk to his

friend. During the second call, Perez told Lukens he

could sell him one-half kilogram for $10,500. While

they were talking this second time, Lukens could hear

someone in the background talking to Perez. The court

relied on its finding that Mendoza exercised decision-

making authority over the conspiracy’s operations, in-

cluding controlling where the cocaine would be stored,

when it would be sold, how much would be sold, and

by whom. The court also found that Mendoza recruited

Rodriguez to participate in the conspiracy. Finally, based

on its finding that Mendoza controlled Perez and dictated

the price, the court also inferred that Mendoza as the

source would keep for himself a larger portion of the

proceeds of the cocaine sale.

II. Analysis

Mendoza challenges the district court’s application of

the two-level enhancement under U.S.S.G. § 3B1.1(c).

He also argues that the court erred in failing to

give meaningful consideration to his arguments for

mitigation under 18 U.S.C. § 3553(a). We review a sen-

tence for reasonableness under a deferential abuse-of-

discretion standard. United States v. Sainz-Preciado, 566

F.3d 708, 716 (7th Cir. 2009).

10 No. 08-2403

A. U.S.S.G. § 3B1.1(c)

Mendoza first challenges the district court’s ap-

plication of U.S.S.G. § 3B1.1(c). He contends that the

district court drew erroneous inferences and relied on

evidence lacking sufficient indicia of reliability.

We review de novo the district court’s application of the

Guidelines. United States v. Abbas, 560 F.3d 660, 662 (7th

Cir. 2009). The district court’s finding that the defendant

played an aggravating role in the offense is reviewed

for clear error. Sainz-Preciado, 566 F.3d at 714. “If there are

two permissible views of the evidence, the fact finder’s

choice between them is not clearly erroneous.” United

States v. Hatten-Lubick, 525 F.3d 575, 580 (7th Cir. 2008).

Under U.S.S.G. § 3B1.1(c) a two-level enhancement is

appropriate where the defendant was a manager or

supervisor in any criminal activity not described in

§ 3B1.1(a) or (b). The “central concern” of § 3B1.1 is the

defendant’s relative responsibility for the commission

of the offense. United States v. Howell, 527 F.3d 646, 649

(7th Cir. 2008) (quoting United States v. Skinner, 986 F.2d

1091, 1097 (7th Cir. 1993)). The district court found that

this enhancement was appropriate because Mendoza

controlled the price at which the cocaine would be sold,

exercised decision-making authority over the con-

spiracy’s operations, recruited Rodriguez to participate

in the conspiracy, and kept a larger share of the proceeds

of the crime.

The record supports the district court’s finding that

Mendoza played an aggravating role in the conspiracy.

Rodriguez indicated in his plea agreement and at his

No. 08-2403 11

change of plea hearing that he allowed Mendoza to

store two kilograms of cocaine at his house at Mendoza’s

request (in exchange for $100). We have recognized that

a drug dealer’s recruitment of an accomplice supports

application of § 3B1.1. See Hatten-Lubick, 525 F.3d at 580-81

(concluding that § 3B1.1 enhancement was not

clearly erroneous where the defendant recruited another

individual to be his runner); United States v. Martinez,

520 F.3d 749, 752 (7th Cir. 2008) (deciding that district

court did not err in applying § 3B1.1 where the

defendant recruited another person to recover drugs

from hidden compartments in trucks driven to Chicago),

cert. denied, 129 S. Ct. 300 (2008); United States v. Ngatia,

477 F.3d 496, 501 (7th Cir. 2007) (upholding § 3B1.1 en-

hancement where the defendant recruited drug couriers

and trained them on how to swallow heroin pellets).

Rodriguez’s factual assertions in his plea agreement and

Rodriguez’s post-arrest statement reflect that Mendoza

recruited Rodriguez to store the cocaine at Rodriguez’s

house. Therefore, the district court did not clearly err

in finding that Mendoza’s recruitment of Rodriguez to

store the cocaine qualified Mendoza for the § 3B1.1(c)

enhancement.

Mendoza argues that the district court’s finding that

he recruited Rodriguez to join the conspiracy was based

on unreliable hearsay—Rodriguez’s uncorroborated, self-

interested statements. The district court may rely on

hearsay evidence in making sentencing determinations

as long as such evidence is reliable and the defendant

has an opportunity to rebut that evidence. See United

States v. Omole, 523 F.3d 691, 701-02 (7th Cir. 2008); United

12 No. 08-2403

States v. Schaefer, 291 F.3d 932, 942 (7th Cir. 2002). While

it is true that Rodriguez did not testify at trial, was a

fugitive, and may have been motivated to downplay

his own role in the conspiracy, these considerations

did not require the district court to reject his post-arrest

statements and admissions in his plea agreement. See

United States v. Johnson, 489 F.3d 794, 797 (7th Cir. 2007)

(“[E]ven the testimony of a potentially biased witness

is sufficient to support a finding of fact.”). Though Rodri-

guez may have had some interest in minimizing his role

in the conspiracy, he also had an interest in being

truthful when making his plea statements—his plea

agreement and the benefits he sought from it depended

on his truthfulness. In addition, the factual statements in

Rodriguez’s plea are consistent with Rodriguez’s post-

arrest statement that Mendoza asked him to keep two

kilograms of cocaine for him in exchange for $100.

We do not require that the testimony of a biased witness

be corroborated by other evidence to justify the district

court’s reliance on such testimony. See Johnson, 489 F.3d at

798. However, the testimony of Rodriguez’s wife, Jaime,

lends some support to Rodriguez’s assertion that he

stored the cocaine at his house at Mendoza’s request.

Jaime stated that Mendoza had been to her house only

once and that was the date of Rodriguez’s arrest. She

also said that while Mendoza was at her house, she over-

heard him telling her husband that Perez had robbed

Mendoza of his dope. This testimony reasonably

supports the inference that Mendoza’s presence at the

Rodriguez home was directly related to Rodriguez’s

later arrest and to the cocaine at Rodriguez’s house.

No. 08-2403 13

We note that the district judge who sentenced Mendoza

(Judge Frederick J. Kapala) was not the district judge

(Judge Philip G. Reinhard) before whom Rodriguez

pled guilty. Thus, Mendoza’s sentencing judge did not

have the opportunity to assess Rodriguez’s credibility

while testifying at his plea hearing. Nonetheless, the

sentencing judge could weigh the considerations noted

above, consider the evidence and record before him, and

reasonably conclude that Rodriguez was being truthful

in asserting that Mendoza asked Rodriguez to store

Mendoza’s cocaine for him. We therefore find no error

in the district court’s determination that Mendoza re-

cruited Rodriguez to join the conspiracy.

Mendoza further contends that no reliable evidence

supports the district court’s finding that he controlled

the transactions or his co-conspirators. Mendoza argues

that Perez, not he, directed and controlled the drug

conspiracy and transactions. To be sure, Perez played a

significant role in the conspiracy: he met with and deliv-

ered the cocaine to Lukens. But the record supports the

finding that Mendoza played an even greater role.

Mendoza doesn’t challenge the district court’s finding

that he owned and supplied the cocaine delivered to

Lukens. Although ownership of the drugs involved in a

conspiracy is not a factor listed in the application notes

to § 3B1.1, U.S.S.G. § 3B1.1 cmt. n. 4, Mendoza’s owner-

ship of the cocaine permits a reasonable inference that he

had control over whether, when, to whom, and how much

of the cocaine would be sold. Further, reliable evidence

supports the district court’s finding that Mendoza con-

trolled where the cocaine would be stored—he arranged

with Rodriguez to store it at Rodriguez’s house for $100.

14 No. 08-2403

Mendoza submits that Perez implied in telephone

conversations with Lukens that Perez had a second

source for the lower quality cocaine. Along these lines,

Mendoza argues that Perez did not have to check with him

about quantities and prices of the cocaine. But Perez’s

statement that “the other guy, he’s not ready,” didn’t

necessarily refer to a second source. Perez never named

his source in his conversations with Lukens. Perez’s

reference to the “other guy” very likely could have been

a reference to the same person that he referred to

earlier as “his guy” or “his friend.” Or the “other guy”

could have been a reference to Perez’s source’s source.

We simply do not know. It seems that Perez’s reference

to the “other guy” may have been intended to shift the

responsibility for not having the “lower quality” cocaine

that Perez had said was available only forty-five minutes

before onto the source, rather than on Perez. Nor do

we know for certain that Perez’s reference to the “other

guy” was a reference to a person. Drug dealers often

use code words to discuss drug types, drug amounts,

and drug transactions. See, e.g., United States v. Fuller,

532 F.3d 656, 663 (7th Cir. 2008); United States v.

Seymour, 519 F.3d 700, 713 (7th Cir.), cert. denied, 129 S. Ct.

527 (2008). It could be that Perez’s reference to the “other

guy” was a reference to the other quality of cocaine that

he and Lukens had discussed in the earlier telephone call.

Furthermore, the evidence of the November 2 telephone

conversations between Lukens and Perez supports a

reasonable inference that Mendoza set the price at

which Perez could sell the cocaine to Lukens. In the

1:35 p.m. phone call, Perez said he had the same kind of

No. 08-2403 15

stuff that he gave Lukens the last time and Perez could

give it to Lukens for $9,000. Perez also stated that it

would be $10,500 for the “good stuff.” In the 2:18 call,

however, Perez indicated that he couldn’t do the $9,000,

but could get Lukens the $10,500 cocaine. This second

conversation occurred after Perez had a chance to

confer with Mendoza about what cocaine and how much

he could get to deliver to Lukens. And although Perez

claimed that the cocaine he was going to give Lukens

for $10,500 was “better stuff,” that is, better than the

kind that Perez gave him in their last deal, nothing in the

record confirms that the cocaine actually was a higher

quality. The cocaine that Perez was promising Lukens

could have been the very same kind of stuff that Perez

had given him before; Mendoza very well could have

decided that it would cost more this time around.

But according to Mendoza, Perez was checking only on

the availability of the particular quantities of particular

drugs, just as any seller would check with his supplier

to find out what he had in stock. Mendoza’s inter-

pretation may be reasonable. However, an equally reason-

able conclusion from this evidence is that Perez had to

check with Mendoza to find out what quantity he could

deliver to Lukens and at what price. At 1:35 p.m., Perez

thought he could get the “same kind” of cocaine for Lukens

for $9,000. But, after talking to Mendoza, he could only

deliver the cocaine for $10,500. The price had changed—at

Mendoza’s direction. As stated, the fact that Mendoza

owned the cocaine lends support to this inference.

In addition, although Perez never explicitly told Lukens

that he needed permission to set the price, Perez repeat-

16 No. 08-2403

edly told Lukens that he had to “find out” and he would

“let [Lukens] know,” or that Perez had to “talk to his guy”

or “his friend.” When Lukens asked for a price break

for the next transaction, Perez couldn’t promise him

anything at the time. Instead, Perez put him off by saying,

“we can talk in person later.” Perez may have done so

because he knew he would have to get Mendoza’s

approval for any “money break”; Perez could not agree

to one on his own. All of this evidence supports the

reasonable inference, which the district court drew, that

Perez had to check with Mendoza on the quantities

and price of the cocaine because the quantities and prices

were set by Mendoza. This evidence may permit other

reasonable inferences as well but the inference that

Mendoza set the price was a reasonable one. We therefore

find no error in the district court’s conclusion that

Mendoza dictated the price of the cocaine.

The record also supports the reasonable inference

that Mendoza controlled Perez. Mendoza made arrange-

ments with Perez to sell the cocaine and instructed Perez

to go to Rodriguez’s house to pick up the cocaine and

then return with the money. Sara Hernandez testified

that Mendoza had said that Perez had run away with

his money, which raises the reasonable inference that

Mendoza thought Perez had disobeyed his instructions

to return to Rodriguez’s house with the money after

the delivery. At the very lea st, Mendoza played a coordi-

nating or organizing role in the conspiracy involving

himself, Perez, and Rodriguez. See United States v. Pira, 535

F.3d 724, 730 (7th Cir. 2008) (“ ‘[A]n upward adjust-

ment under section 3B1.1(c) does not require an explicit

No. 08-2403 17

finding that the defendant exercised control, so long as

the criminal activity involves more than one participant

and the defendant played a coordinating or organizing

role.’ ” (quoting United States v. Carrera, 259 F.3d 818, 827

(7th Cir. 2001))), cert. denied, 129 S. Ct. 583 (2008).

The final basis for the § 3B1.1 enhancement was the

district court’s inference that Mendoza as the source of the

cocaine would keep for himself a larger share of the

proceeds. Mendoza claims this finding is in error. The

record does not contain any direct evidence that

Mendoza claimed a larger share of the proceeds. How-

ever, the evidence that he owned the cocaine along with

the reasonable inference that he set the price of the

cocaine permit a reasonable inference that he laid claim to

a larger share of the proceeds. We note that Mendoza

was aware before sentencing that the PSR recommended

application of the § 3B1.1 enhancement based in part on

the conclusion that he claimed a right to a larger share

of the proceeds. Mendoza could have offered contrary

evidence at the sentencing hearing. He failed to produce

any evidence to challenge this conclusion.

We reject the remainder of Mendoza’s arguments. He

asserts that the evidence proves that his role was only

that of a middleman or supplier, which is insufficient for

the aggravating role enhancement. He is incorrect, both

legally and factually. While merely being a distributor

is insufficient to support the enhancement, United States

v. Pagan, 196 F.3d 884, 892 (7th Cir. 1999), being “a mere

middleman” does not make a defendant “immune from

application of § 3B1.1,” Sainz-Preciado, 566 F.3d at 715

18 No. 08-2403

(quoting Howell, 527 F.3d at 649). It is the defendant’s

relative responsibility and control over other partic-

ipants that matters. Id. As for the evidence, as discussed,

the record supports the finding that Mendoza was no

mere middleman or supplier.

Mendoza also argues that a pure fronting arrangement

is insufficient to support the enhancement. True,

evidence of a fronting arrangement, without more, is

insufficient to show the control required for an ag-

gravating role enhancement. United States v. Guyton, 36

F.3d 655, 662 (7th Cir. 1994). However, the district court

rejected the claim that the relationship between Mendoza

and Perez was a mere fronting arrangement. This finding

is supported by reliable evidence, including the infer-

ence that Mendoza controlled the price of the cocaine to

be sold by Perez. Mendoza’s greater role in the con-

spiracy is also established by the evidence that he exer-

cised control over the conspiracy as well as the evidence

that he recruited Rodriguez to join in the conspiracy.

Mendoza had greater responsibility for the conspiracy

than either Rodriguez or Perez. The district court

did not err in applying a two-level enhancement under

§ 3B1.1 for Mendoza’s role in the offense.

B. Arguments for Mitigation

Under 18 U.S.C. § 3553(a)

Mendoza contends that the district court erred by

failing to articulate any reason for rejecting his argu-

ments for mitigation under 18 U.S.C. § 3553(a). In par-

No. 08-2403 19

ticular, he cites the effects his likely deportation would

have on him and his family and his claim that a shorter

sentence would assist him in readjusting to life outside

the United States.

A sentencing court can take into account a defendant’s

status as a deportable alien. See, e.g., United States v.

Panaigua-Verdugo, 537 F.3d 722, 728 (7th Cir. 2008) (stating

that the district court “engaged with [the defendant’s]

concerns regarding the effects that the sentence and

subsequent deportation would have on his family”). But

Mendoza cites no authority that requires the court to

address the negative effects of a defendant’s deportation

if the court is not persuaded that a sentence reduction is

warranted.

In sentencing a defendant, the district court is required

to consider the § 3553(a) factors and to address any sub-

stantial arguments the defendant made. See Martinez, 520

F.3d at 753. However, the court need not discuss every

factor, “as long as ‘the record confirms meaningful con-

sideration of the types of factors that section 3553(a)

identifies.’ ” Sainz-Preciado, 566 F.3d at 716 (quoting

United States v. Laufle, 433 F.3d 981, 987 (7th Cir. 2006)). The

court may reject “stock arguments” without discussion.

Martinez, 520 F.3d at 753 (citing United States v. Tahzib, 513

F.3d 692, 695 (7th Cir. 2008)). The district court did not

specifically discuss the effects of Mendoza’s likely deporta-

tion and expected separation from his wife and minor

children. Nor did the court specifically discuss some of

20 No. 08-2403

Mendoza’s other arguments for a shorter sentence.2

However, the record reflects that the court considered

those arguments.

At the sentencing hearing, defense counsel raised

Mendoza’s likely deportation as a mitigating circum-

stance, arguing that Mendoza would be “forever

separated from his children wh[o] are United States

citizens.” The court then stated: “The defendant’s going to

be deported, in any event, so how does deportation

factor into the sentencing decision that I have to make? . . .

He’s going to receive some prison sentence. As a result

of that, he’s going to be deported.” Defense counsel

responded by focusing on the fact that the deportation

would make Mendoza ineligible for certain programs

within the Bureau of Prisons which could have reduced

the length of his imprisonment and would make him

ineligible to participate in a halfway house. Mendoza’s

attorney added that in his opinion if Mendoza was re-

turned to his native country sooner, he would have a

better chance of readjusting to life there. Counsel also

thought a quicker return would lessen any temptation

Mendoza would have to return illegally to the United

States. The district court gave Mendoza the opportunity

to address the court, but he declined to do so.

2

These include: that Mendoza financially and emotionally

supported his children; his lack of prior criminality; his age;

that he was lawfully in the United States; that he was em-

ployed and contributed taxes; and that a minimum Guidelines

sentence would be greater than the sentences imposed on

Perez and Rodriguez.

No. 08-2403 21

Mendoza’s deportation argument strikes us as nothing

other than a stock argument that is routinely, and in-

creasingly, made to the district courts. See United

States v. Meza-Urtado, 351 F.3d 301, 305 (7th Cir. 2003)

(noting that requests for departures based on a

defendant’s status as a deportable alien seemed to be

increasing in frequency). Every deportable alien would

be ineligible to participate in certain BOP programs or in

a halfway house and could argue for mitigation based

on deportability. And it does not seem that Mendoza

would be alone in claiming that deportation would sepa-

rate him from his family. As such, Mendoza’s deportation

argument was not a substantial one requiring explicit

discussion by the district court.

It also seems to us that the district court did take defen-

dant’s arguments for mitigation into account. First, it

is incorrect to claim the district court passed over his

arguments in silence. As noted, the court discussed

Mendoza’s likely deportation with his counsel during the

hearing, saying “defendant’s going to be deported, in

any event. . . .” In addition, the court had just heard

testimony from M endoza’s sister-in-law Sandra

Mendoza who testified that Mendoza had been gainfully

employed in a lawful occupation for the 30 years she

had known him; that he made his court-ordered child

support payments and kept current on them; and that

he was a good father and supported his children. Sandra

also said that Mendoza was a lawful permanent U.S.

resident, but his children were U.S. citizens. Finally, she

testified to the financial and emotional impact that

Mendoza’s likely deportation would cause his young

22 No. 08-2403

children. Thus, Sandra’s testimony touched on all of

Mendoza’s arguments for mitigation but two: his

criminal history and the fact that under the Guidelines, he

would receive a greater sentence than his codefendants.

This is not a case where the district court could have

overlooked some arguments or evidence that were pre-

sented to the court in documentary form. Sandra

testified right in the presence of the sentencing judge. We

have no reason to think that the judge wasn’t attentive

during her testimony. In fact, at one point, he reminded

her that her statements were being translated and that

she should speak slowly. This suggests that the judge

was, in fact, paying close attention to Sandra’s testimony.

Furthermore, the district court stated that it had consid-

ered Mendoza’s arguments:

I’ve considered the presentence report and the

accompanying materials. I have considered the

arguments made by the government and the

defendant. I’ve considered Sandra’s [Mendoza’s

sister-in-law] testimony. I’ve considered the sen-

tencing guidelines calculations and all of the other

sentencing factors contained in Section 3553(a).

And in discussing the § 3553(a) factors, the district court

specifically mentioned several of them: the nature

and circumstances of the offense, the history and character-

istics of the defendant, the need for specific and general

deterrence, and the need to protect the public from

further crimes by Mendoza. The characteristics of the

defendant would seem to include Mendoza’s alienage

and likely deportation as well as his age, employment,

No. 08-2403 23

and his history of supporting his children, both finan-

cially and emotionally. There is no requirement that the

sentencing judge must use a formulaic checklist to tick

off each point asserted in aggravation or mitigation. See

United States v. Castaldi, 547 F.3d 699, 706 (7th Cir. 2008)

(stating that the district court need not “proceed in a

checklist fashion” through the § 3553(a) factors).

The district court also explained that it thought

Mendoza’s criminal history category understated his

criminal activity, noting his prior DUI, his admission

that he sold cocaine in the past, and his past ownership

of a vehicle with secret compartments suitable for

hiding drugs. The court articulated sound reasons why

a greater sentence was warranted for Mendoza than

for either Perez or Rodriguez. Thus, in explaining its

reasons for imposing the sentence that it did, the

district court explicitly discussed the two factors that

were not touched upon by Sandra’s testimony. Finally,

the court said that it had determined that a sentence

within the Guidelines range was “most appropriate in

this case” and that a sentence of 120 months was “suffi-

cient but not greater than necessary to comply with the

purposes of” § 3553(a).

Moreover, after imposing sentence the court asked

defense counsel if the court had addressed all of defen-

dant’s arguments. Counsel said “yes.” This reflects that

the district court did address the defendant’s argu-

ments—at least Mendoza’s attorney thought so at sen-

tencing. Had the district court overlooked a substantial

argument, defense counsel had the opportunity to say

24 No. 08-2403

so. Given the record made at sentencing, we can be rea-

sonably assured that the district court took the effects

of Mendoza’s likely deportation as well as his other

arguments for mitigation into account in determining

the appropriate sentence.

Although the district court did not explicitly discuss

each of Mendoza’s arguments for mitigation, the court

considered them. The district court also gave meaning-

ful consideration to the § 3553(a) factors and ade-

quately explained its reasons for imposing a within-

Guidelines 120-month sentence. Nothing presented in

this appeal undercuts the imposition of a presumptively

reasonable within-Guidelines sentence. See United States

v. Turner, 569 F.3d 637, 640 (7th Cir. 2009) (indicating

that when the district court followed the proper proce-

dures in determining a sentence, a within-Guidelines

sentence is presumed reasonable); Castaldi, 547 F.3d at 706

(“A within-guidelines, properly calculated sentence is

presumptively reasonable.”).

III.

For the foregoing reasons, the appellant’s sentence is

A FFIRMED.

8-12-09