May 17, 2019
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 09 CR 546-7 -
Charles P. Kocoras, Judge.
Ripple, Manion, and Sykes, Circuit Judges.
Manion, Circuit Judge.
Macias helped move drug money from Chicago to Mexico. At his
bench trial, he challenged a drug-conspiracy charge by
testifying he thought the cash came from human smuggling, not
drug trafficking. But the district judge did not believe him.
The judge convicted him and imposed a two-level enhancement
under U.S.S.G. § 2Dl.l(b)(l5)(D) for obstructing justice
by testifying falsely. On appeal, Macias argues this
enhancement does not apply to a defendant who perjures
himself at trial. He also argues the judge failed to find all
perjury elements independently and explicitly, as
constitutionally required. But Macias waived these
challenges, foreclosing appellate review.
helped smuggle illegal immigrants into America in the late
1980s and early 1990s, incurring multiple convictions. Many
years later, La Familia Michoacana asked him to help move
cash into Mexico, telling him it came from human smuggling,
according to his testimony. He agreed. From 2007 to 2009, he
arranged for his brother-in-law, Ismael Flores, to make trips
from Chicago to Dallas with a total of about $10, 000,
bound for Mexico. But La Familia Michoacana is a drug cartel.
The cash was drug money. Flores realized this during his first
trip given the payload and secret instructions.
2012 trial, sentencing, and appeal
Macias faced charges, he testified he thought the cash came
from human smuggling, not drugs. But the jury convicted him
of conspiring to distribute at least five kilograms of
cocaine and of conducting an unlicensed money-transmitting
business. The judge sent him to prison for 300 months for the
conspiracy concurrent with 60 months for the money
transmitting. Macias appealed the conspiracy conviction,
challenging the "deliberate indifference" jury
instruction. We reversed because the instruction erroneously
allowed conviction simply "because he wasn't curious
enough to discover the source of the illegal funds."
United States v. Macias, 786 F.3d 1060, 1063 (7th
Cir. 2015). We remanded for a new trial on the conspiracy
charge. We vacated the money-transmitting sentence to allow
potential resentencing at a lower guidelines range without
the conspiracy conviction.
case was reassigned to Judge Kocoras on remand. Macias
consented to a bench trial, which he faced in August 2016. At
this retrial, Flores testified he knew the money was drug
money. But, again, Macias testified that he did not. He
testified a superior in the cabal told him the money came
from human smuggling. Macias testified that he believed
throughout his involvement that he was in a human-smuggling
operation, unconnected with drugs. But the judge did not
judge convicted Macias of conspiracy to transport cocaine.
The judge found "Macias was not a believable witness and
his testimony that he was ignorant of the source of the cash
transported was implausible, contradicted by other testimony
and by his own actions during the course of the drug
conspiracy charged and proved ... ." (Findings and
Conclusions, DE 523 at 10.) The judge found "Macias was
untruthful in his testimony in a variety of respects in
addition to his claim of ignorance as to the source of the
transported cash and was not credible as to any material
matter about which he testified ... ." (Id.)
Macias moved for judgment of acquittal. But the judge denied
that motion, noting "Marias was entirely unworthy of
belief." (Ruling, DE 561 at 1.)
probation office recommended an enhancement under §
2Dl.l(b)(l5)(D) for obstruction because Marias falsely
testified he was ignorant of the cash's true source. In
its sentencing memorandum, the government also asked the
judge to consider Macias's perjury. Marias did not raise
any objection to this enhancement in his sentencing
memorandum or objections to the presentence investigation
resentencing hearing, Marias still did not object to this
enhancement. The judge listed Macias's challenges:
[Judge]: [T]he Guideline calculation is challenged for, one,
there is a challenge to the quantity of drugs and the
calculation of price and how we got to the ultimate Adjusted
Offense Level of 41. And there is a challenge to the
leadership enhancement. ...