January 11, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 09 CR 383 - Ruben
Castillo, Chief Judge.
Easterbrook, Williams, and Sykes, Circuit Judges.
Easterbrook, Circuit Judge.
Vasquez-Hernandez pleaded guilty to a drug conspiracy. 21
U.S.C. §846. He admitted transporting 200 kilograms of
cocaine, worth some $5 million, on behalf of the notorious
Sinaloa Cartel, and to receiving a further 76 kilograms to be
sold on consignment for about $2 million. The district court
calculated a Guidelines range of 188 to 235 months'
imprisonment and sentenced Vasquez-Hernandez to 264 months,
about 2½ years more than the high end of the range.
Although Vasquez-Hernandez conceded being an agent of others,
the district judge concluded that he also had a supervisory
role-that, indeed, anyone entrusted with $7 million of
someone else's cocaine must have high status in the
organization. Vasquez-Hernandez contends on appeal that these
were one-off transactions, that he supervised no one, that
the range therefore should have been 135 to 168 months, and
that his sentence should be within that range.
principal appellate contest revolves around the three offense
levels that the district judge added under U.S.S.G. §3B
1.1(b), which applies when the defendant was "a manager
or supervisor (but not an organizer or leader) and the
criminal activity involved five or more participants or was
otherwise extensive". The district court found that the
Sinaloa Cartel is substantially larger than five
participants, and that Vasquez-Hernandez had criminal contact
with at least that many persons. If an organization has five
members (or is otherwise extensive), supervising any one of
them supports the enhancement. See United States v.
Figueroa, 682 F.3d 694, 696-97 (7th Cir. 2012). The
judge's findings are not clearly erroneous.
makes much of the district judge's failure to name the
persons he managed or supervised. Yet the language of
§3B 1.1(b) does not require naming names, nor does our
case law. See United States v. Mansoori, 304 F.3d
635, 668-69 (7th Cir. 2002); United States v.
Richards, 198 F.3d 1029, 1031, 1034 (7th Cir. 2000).
This leaves only Vasquez-Hernandez's argument that he
just didn't supervise anyone.
problem with this argument is the sheer quantity of cocaine
to which he admitted. No one can carry 276 kilograms of
cocaine on his back or hide it in the glove compartment of a
car. Moving any substance of this weight and bulk requires
the assistance of multiple people. And the district judge
inferred from the fact that the Sinaloa Cartel was willing to
trust Vasquez-Hernandez with $7 million worth of cocaine that
he had a high status in the organization and was in a
position to tell at least some other people what to do,
rather than being at the bottom of the totem pole. That
inference is not clearly erroneous.
Vasquez-Hernandez effectively admitted supervising some
others. "Individual A" (whose name has been
concealed for his safety) fronted the 76 kilograms to
Vasquez-Hernandez. As part of his plea, Vasquez-Hernandez
stated that he "utilized Individual A's connections
to arrange for the transportation of the cocaine". This
strongly implies that he told Individual A's associates
(his "connections") what to do. It may be that
Vasquez-Hernandez and Individual A were on the same level of
the organization, neither giving instructions to the other,
but that can't be said about the "connections"
through whom Vasquez-Hernandez made essential arrangements.
district court did not make any findings of fact on this
subject (beyond saying that Vasquez-Hernandez must have had
some "subordinates" to move the drugs) and did not
need to. Disputes must be resolved by findings; undisputed
matters may be taken as established. The district court did
remark that 276 kilograms of cocaine can't be moved by
one person, and that the quantity alone prevents treating
Vasquez-Hernandez as a low-level mule. This means that
Vasquez-Hernandez had authority over at least one person-and,
since that person need not be identified, the application of
an enhancement under §3Bl.l(b) was not an abuse of
maintains that the judge should not have imposed a sentence
longer than 235 months, the top of the range as the court
calculated it. His sentence was 29 months higher, which does
not require elaborate justification. The quantity table in
U.S.S.G. §2D1.1 assigns 150 to 450 kilograms of cocaine
to offense level 36. Vasquez-Hernandez was responsible for at
least 276 kilograms of cocaine, almost double what is
necessary to produce that level. The judge also suspected
that Vasquez-Hernandez was lying when he said that these 276
kilos represent the only drugs for which he is
responsible, and that he is just the proprietor of a
struggling auto-repair shop who accepted help in the form of
276 kilos of cocaine from friends who wanted to assist his
family financially. The judge stated: "I cannot sit
here, as a judge who's been on the bench for 20 years and
who's been involved in the drug war for a good portion of
my life, and think for one second, nor do I think any other
Chicagoan could think for one second that this was the first
time that you just happened to do this, that you ... got up
out of bed and said, well, let me do a 276-kilogram
transaction to Chicago today."
prosecutor produced statements from other confessed
participants in the Sinaloa Cartel that attributed
substantial quantities to Vasquez-Hernandez. These
conspirators asserted that they, working together with
Vasquez-Hernandez, had imported at least ten tons of cocaine-
mostly by aircraft but some by trains and submarines-and
smuggled the proceeds back to Mexico. The district court
decided to take the approach most favorable to
Vasquez-Hernandez and disregard this evidence, although at
one point the judge mused that it called into question the
wisdom of giving Vasquez-Hernandez a three-level reduction
for acceptance of responsibility. (If the evidence had been
credited, Vasquez-Hernandez not only would have lost this
reduction but also would have been exposed to a two-level
addition for obstructing justice by falsely denying relevant
conduct.) The district court's overall approach cannot be
deemed unreasonably unfavorable to Vasquez-Hernandez.
we wonder whether the district judge's decision to exceed
the top of the Guidelines range does not show that details
such as the §3B1.1 enhancement were irrelevant. Multiple
potential additions and subtractions were in play. We've
mentioned three-supervision, acceptance of responsibility,
and obstruction of justice-and there were more. If it was a
mistake to decide the supervision issue adversely to
Vasquez-Hernandez, it may equally have been a mistake to rule
in his favor on acceptance of responsibility and the quantity
of cocaine for which he is accountable.
urged district judges to let us know whether they would have
imposed the same sentence even if they had also ruled
differently on one of the many subsidiary issues that the
Guidelines pose. See, e.g., United States v. Hawkins,
777 F.3d 880, 885 (7th Cir. 2015); United States v.
Lopez,634 F.3d 948, 953-54 (7th Cir. 2011); United
States v. Sanner,565 F.3d 400, 405-06 (7th Cir. 2009).
The district judge's statements at sentencing strongly
imply that three levels one way or the other (either for
supervision or acceptance of responsibility) just did not
affect the sentence. He said several times that 25 years
(less credit for time Vasquez-Hernandez had spent in Mexican
confinement) was the only sensible sentence. But the judge
did not say expressly that he would have held to this view
had the ...