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United States v. Macias

United States Court of Appeals, Seventh Circuit

June 21, 2019

United States of America, Plaintiff-Appellee,
v.
Roberto Macias, Defendant-Appellant.

          Argued May 17, 2019

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 09 CR 546-7 - Charles P. Kocoras, Judge.

          Before Ripple, Manion, and Sykes, Circuit Judges.

          Manion, Circuit Judge.

         Roberto 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.

         I. Background

         A. Crimes

         Macias 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, 000[1] bound for Mexico. But La Familia Michoacana is a drug cartel. The cash was drug money.[2] Flores realized this during his first trip given the payload and secret instructions.

         B. 2012 trial, sentencing, and appeal

         When 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.

         C. 2016 retrial

         Macias's 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 believe him.

         The 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.)

         D. Resentencing

         The 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 report.

         At the 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. ...

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