United States v. Jose Maciel , 527 F. App'x 543 ( 2013 )


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  •                                NONPRECEDENTIAL DISPOSITION
    To be cited only in accordance with Fed. R. App. P. 32.1
    United States Court of Appeals
    For the Seventh Circuit
    Chicago, Illinois 60604
    Argued August 7, 2013
    Decided August 9, 2013
    Before
    FRANK H. EASTERBROOK, Chief Judge
    DANIEL A. MANION, Circuit Judge
    MICHAEL S. KANNE, Circuit Judge
    No. 12-3218                                                   Appeal from the United
    States District Court for the
    UNITED STATES OF AMERICA,                                     Northern District of Illinois,
    Plaintiff-Appellee,                                     Eastern Division.
    v.
    No. 10 CR 652
    JOSE LUIS MACIEL,                                             Amy J. St. Eve, Judge.
    Defendant-Appellant.
    Order
    Jose Luis Maciel was sentenced to 188 months’ imprisonment after a jury convicted
    him of distributing cocaine and related offenses. This is the low point of the 188 to 235
    month range the district court calculated under the Sentencing Guidelines. Maciel’s sole
    appellate argument is that the district judge should have treated him as a minor partici-
    pant in the offense, which would have reduced his offense level. U.S.S.G. §3B1.2. He did
    not request this reduction in the district court, however, and the judge did not commit
    plain error by deciding not to raise the possibility herself.
    A reduction under §3B1.2 depends on a conclusion that the defendant is substantial-
    ly less culpable than the average participant in the offense. See United States v. Leiskunas,
    
    656 F.3d 732
    , 739 (7th Cir. 2011). Maciel was a major-league courier. The evidence at tri-
    al documented his delivery of 20 kilograms of cocaine on one occasion and 45 kilos on
    another. He was a long-distance truck driver who added drugs to the manifest of legit-
    No. 12-3218                                                                          Page 2
    imate cargo, receiving $2,000 for his services after each delivery. Evidence in the record
    shows that he dealt directly with the top of an organized drug-distribution network and
    transported cocaine regularly; the prosecutor’s decision to stop with proof of two epi-
    sodes does not imply that these were the limit of his responsibility.
    Couriers have received reductions under §3B1.2 when the evidence shows that they
    were bit players. The situation of Victor Diaz-Rios, to whom Maciel delivered the 45-
    kilo shipment, illustrates. We concluded that Diaz-Rios was eligible for a reduction
    (though not necessarily entitled to it) because that delivery was a one-off deal for him,
    and he did not know the type or quantity of drugs he received. United States v. Diaz-
    Rios, 
    706 F.3d 795
     (7th Cir. 2013). Maciel was a regular, was trusted with million-dollar
    cargos, and knew exactly what he was carrying. If he had requested a reduction under
    §3B1.2, the district judge would have been entitled to say no, for these and other rea-
    sons. See, e.g., United States v. Saenz, 
    623 F.3d 461
    , 468 (7th Cir. 2010); United States v.
    Gonzales, 
    534 F.3d 613
    , 617 (7th Cir. 2008); United States v. Mendoza, 
    457 F.3d 726
    , 729–30
    (7th Cir. 2006). It follows that the district judge did not commit plain error when she ac-
    cepted the presentence report’s calculation, in the absence of any request by the defend-
    ant for a reduction under §3B1.2.
    AFFIRMED
    

Document Info

Docket Number: 12-3218

Citation Numbers: 527 F. App'x 543

Judges: PerCuriam

Filed Date: 8/9/2013

Precedential Status: Non-Precedential

Modified Date: 1/12/2023