United States v. Roberto Macias , 927 F.3d 985 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1981
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERTO MACIAS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 09 CR 546-7 — Charles P. Kocoras, Judge.
____________________
ARGUED MAY 17, 2019 — DECIDED JUNE 21, 2019
____________________
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 chal-
lenged 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.
§ 2D1.1(b)(15)(D) for obstructing justice by testifying falsely.
On appeal, Macias argues this enhancement does not apply to
2 No. 18-1981
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 kilo-
grams of cocaine and of conducting an unlicensed money-
transmitting business. The judge sent him to prison for 300
1 The record gives various figures but the precise amount is immate-
rial for our purposes.
2 Macias admitted a significant part of the cash was from drugs. But
he argued the government did not prove all of it was. The judge found the
cash came from “the sale of illegal drugs and not from any other source.”
(Findings and Conclusions, DE 523 at 10.) Macias does not press this on
appeal.
No. 18-1981 3
months for the conspiracy concurrent with 60 months for the
money transmitting. Macias appealed the conspiracy convic-
tion, challenging the “deliberate indifference” jury instruc-
tion. We reversed because the instruction erroneously al-
lowed 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 through-
out his involvement that he was in a human-smuggling oper-
ation, unconnected with drugs. But the judge did not believe
him.
The judge convicted Macias of conspiracy to transport co-
caine. 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 tes-
timony and by his own actions during the course of the drug
conspiracy charged and proved … .” (Findings and Conclu-
sions, 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
4 No. 18-1981
judge denied that motion, noting “Macias was entirely un-
worthy of belief.” (Ruling, DE 561 at 1.)
D. Resentencing
The probation office recommended an enhancement un-
der § 2D1.1(b)(15)(D) for obstruction because Macias falsely
testified he was ignorant of the cash’s true source. In its sen-
tencing memorandum, the government also asked the judge
to consider Macias’s perjury. Macias did not raise any objec-
tion to this enhancement in his sentencing memorandum or
objections to the presentence investigation report.
At the resentencing hearing, Macias still did not object to
this enhancement. The judge listed Macias’s challenges:
[Judge]: [T]he Guideline calculation is chal-
lenged for, one, there is a challenge to the quan-
tity 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 lead-
ership enhancement. Those are the challenges, I
think, lodged way back when, right?
[Defense counsel]: Yes, your honor.
[Judge]: All right. Is there anything you want to
add to those challenges?
[Defense counsel]: Judge, I think the challenges
are pretty clearly stated in the papers.
(Tr. Sentencing Hr’g, DE 587 at 5–6.) Defense counsel then ar-
gued about drug quantities and Macias’s lack of authority
over Flores, but did not mention obstruction.
The judge then asked again for any other challenges:
No. 18-1981 5
[Judge]: Is there any other factual or legal chal-
lenge to anything we have discussed yet—
[Defense counsel]: No, your Honor.
[Judge]: —based on the reports?
[Defense counsel]: No, no, no, not to the report
as it is now.
***
[Judge]: But we are all dealing with the calcula-
tion that I talked about.
[Defense counsel]: No, no, no. No additional ob-
jection, Judge. You addressed both—
[Judge]: All right.
[Defense counsel]: —of the objections.
(Id. at 15–16.)
The judge then addressed Macias directly:
[Judge]: [D]o you think there is any—something
is wrong factually in any of these materials?
[Macias]: No. The way my attorney explained it,
I believe, is correct.
(Id. at 16.)
During its turn at the resentencing hearing, the govern-
ment called Macias a liar:
[Prosecutor]: One thing that has changed since
the last time he was before Judge Bucklo is that
he got up on that witness stand over there (indi-
cating), to my left, and he lied through his teeth
6 No. 18-1981
to your Honor. This was a bench trial. He had
lied to Judge Bucklo, contending that he was
nothing more than a dupe; somebody who
thought that the money that was being gener-
ated, that he was transporting, came from hu-
man smuggling—which was, frankly, an absurd
idea, but one that he pursued not once, but
twice. He did not accept responsibility before
this Court for the injury that he has caused in
this district; and, rather, tried to make light of it
by concocting a silly defense to the charge.
(Id. at 18.) The government sought a sentence of 360 months.
Defense counsel then argued about the level of Macias’s
culpability, explained Macias’s decision to go to trial, and be-
moaned what he called “a penalty imposed for testifying”:
[Defense counsel]: So, he made a decision to
challenge it and present a defense at trial. He
did do that. And there is a penalty imposed for
testifying. If you—I always think this is kind of
a weird penalty, practically speaking, Judge, be-
cause if you—get the fortune to have a jury that
finds reasonable doubt or a judge that finds rea-
sonable doubt, you don’t get guilt. And if you
do—if you don’t then you do. And I don’t know
how helpful the enhancement is. I think it gen-
erally probably chills people from trying to pre-
sent a defense; but, regardless of that, he gets
the penalty for that. That is part of this, in terms
of his Guideline range. But under the practical
reality of his situation, I don’t think he should
be heavily punished for deciding to defend
No. 18-1981 7
himself against the case, in the best way he
could, under the circumstances. Because the
Sentencing Guidelines put him in a box that is
very difficult for a defendant to manage—when
you are looking at those kind of numbers—or a
lawyer. It is difficult to decide what your best
strategy is and what you can do. They tie your
hands significantly. And he made the decision
to defend his case and we defended it the best
we could. And I don’t think he should be heav-
ily punished for making that decision.
(Id. at 23–24.) Again, defense counsel did not object to the ob-
struction enhancement. Instead, he begrudgingly acknowl-
edged Macias “gets the penalty for that.” Defense counsel
presented a wide variety of detailed mitigation arguments.
But he never objected to the obstruction enhancement. He
never argued it does not apply or the perjury elements were
not satisfied. He asked for a sentence of between 180 to 240
months.
Then Macias spoke. He admitted a degree of guilt: “I al-
ways knew that what I was doing was illegal and wrong, even
if I did not know all of the details about what the people I was
working with were doing.” (Id. at 34.) He echoed his counsel.
He talked about consequences, plans, and hopes. He apolo-
gized. He did not challenge the obstruction enhancement.
The judge then explained his reasoning. He praised de-
fense counsel several times: “a very, very able advocate … one
of the better ones I have seen.” (Id. at 38.) The judge imposed
a sentence of 240 months for the drug conspiracy concurrent
with 60 months for the money transmitting. Macias appeals.
8 No. 18-1981
II. Analysis
Macias argues § 2D1.1(b)(15)(D) does not apply to a de-
fendant who perjures himself at his trial. In the alternative, he
argues the judge failed to find all perjury elements inde-
pendently and explicitly, as required by United States v. Dun-
nigan, 507 U.S. 87 (1993), for a perjury enhancement to be con-
stitutional. 3 But Macias waived these challenges. Waiver fore-
closes appellate review. United States v. Walton, 255 F.3d 437,
441 (7th Cir. 2001). We generally will not force on a party a
waivable position he chose not to take, and will not entertain
arguments a party chose not to develop below, even if he
changes his mind on appeal. Id. In our adversary system, a
party may have many strategic reasons to drop a viable claim.
We are very careful when finding waiver. It requires a
“knowing and intentional decision” to forego a right. United
States v. Moody, 915 F.3d 425, 429 (7th Cir. 2019). A party
waives an issue when he “intentionally relinquishes or aban-
dons a known right … .” Walton, 255 F.3d at 441. Mere forfei-
ture, on the other hand, permits plain-error review. Moody,
915 F.3d at 429. A party forfeits an issue when he “fails to raise
an argument due to accident or neglect.” United States v. Seals,
813 F.3d 1038, 1045 (7th Cir. 2016).
Here, although Macias made other challenges, he did not
challenge the obstruction enhancement in his filings leading
up to the resentencing hearing or at the hearing itself. He did
3 This alternative argument highlights the waiver doctrine’s im-
portance. If the judge did not discuss perjury in depth at resentencing,
Macias bears fault for failing to object and alert the judge to a need for
such discussion. Had Macias objected, we would have a different record
on appeal.
No. 18-1981 9
not argue § 2D1.1(b)(15)(D) does not apply to perjury or Dun-
nigan requires more explicit findings of perjury’s elements.
At the resentencing hearing’s outset, the judge identified
Macias’s challenges. The judge noted Macias challenged the
drug and money amounts and the leadership enhancement.
The listed challenges did not include obstruction. The judge
asked, “Is there anything you want to add to those chal-
lenges?” (Tr. Sentencing Hr’g, DE 587 at 5.) Defense counsel
responded, “Judge, I think the challenges are pretty clearly
stated in the papers.” (Id. at 5–6.) He did not add a challenge
to the obstruction enhancement. He presented arguments
about the drug and money amounts and the leadership en-
hancement. The judge resolved these issues and again invited
other challenges. Defense counsel responded: “No, no, no. No
additional objection, Judge. You addressed both … of the ob-
jections.” (Id. at 15.)
The government then discussed the § 3553(a) factors and
emphasized Macias lied at both trials. Defense counsel then
made another presentation. He argued Macias was not a
linchpin and nothing about him was worse simply because
the cartel was big. He argued Macias challenged the case due
to the huge sentence he faced. He bemoaned the “penalty im-
posed for testifying” and argued the enhancement “probably
chills people from trying to present a defense; but, regardless
of that, he gets the penalty for that. That is part of this, in
terms of his Guideline range.” (Id. at 23–24.) Defense counsel
made many mitigation arguments but never objected to the
obstruction enhancement. He never argued it does not apply
or Dunnigan requires more explicit perjury findings. Finally,
after imposing sentence, the judge asked again, “Is there any-
thing else?” And defense counsel again said no.
10 No. 18-1981
This is not merely a case where a defendant failed to object
when asked the rote question, “Any other objections?” Here,
the coup de grâce is the acknowledgement, albeit begrudging,
that the enhancement applies: “[H]e gets the penalty for that.
That is part of this, in terms of his Guideline range.” (Id. at 24.)
The decision not to challenge the obstruction enhance-
ment makes strategic sense. As the government notes, there
were good reasons to avoid disputing the untruthfulness of
Macias’s testimony. The judge already found it untruthful.
And there were good reasons to avoid tainting mitigation ar-
guments about personal history and family circumstances.
When a judge convicts a defendant and tells him he lied under
oath, it is a rational strategy (at least sometimes) not to dwell
on the lies. Moreover, Macias did object to the obstruction en-
hancement in advance of the prior sentencing. Macias’s objec-
tion then did not follow the same lines he pursues now, but
that objection tends to confirm that the decision not to object
to the enhancement the second time around was made know-
ingly and intentionally. Macias offers no availing reason to
think the lack of an objection to the obstruction enhancement
at resentencing was not strategic.
III. Conclusion
Macias knowingly and intentionally waived challenges to
the obstruction enhancement, foreclosing our review. 4 We
therefore DISMISS this appeal.
4 We note Judge Kocoras sentenced Macias to 240 months imprison-
ment for Count 1, within the range he requested.