United States v. Ramon Calderon , 559 F. App'x 554 ( 2014 )

NONPRECEDENTIAL DISPOSITION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
Submitted March 26, 2014
Decided March 27, 2014
Before
DIANE P. WOOD, Chief Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12-3717
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 10 CR 608-4
RAMON CALDERON,
Defendant-Appellant. Samuel Der-Yeghiayan,
Judge.
ORDER
An informant negotiated with Francisco Arroyo to sell four kilograms of cocaine
in exchange for $114,000. At the agreed time and place, Jose Covarrubias and Jorge
Vasquez arrived with the money to take delivery of the cocaine. Instead they were
arrested by FBI agents, who seized the cash and a car equipped with a hidden
compartment. Authorities traced the car to Ramon Calderon, who had reported it
missing three days after the arrests. The FBI investigation then expanded to include
Calderon, and months later he told other informants in a conversation captured on
video that he had gathered “a hundred” to buy “coke” and even supplied his modified
car for the failed drug purchase.
No. 12-3717 Page 2
Calderon, Arroyo, Covarrubias, and Vasquez were charged with conspiring and
attempting to possess cocaine with intent to distribute. See 21 U.S.C. §§ 846, 841(b)(1)(B).
Calderon and Arroyo were tried together. Calderon was found guilty by the jury, and
Arroyo was acquitted. The district court calculated a guidelines imprisonment range of
121 to 151 months for Calderon and sentenced him to 121 months. He filed a notice of
appeal, but his appointed attorney asserts that the appeal is frivolous and seeks to
withdraw under Anders v. California, 386 U.S. 738 (1967). Calderon opposes counsel’s
motion. See CIR. R. 51(b). We confine our review to the potential issues identified in
counsel’s facially adequate brief and Calderon’s response. See United States v. Schuh, 289
F.3d 968, 973–74 (7th Cir. 2002).
As the case proceeded to trial, Calderon disrupted the proceedings with baseless
jurisdictional claims common among the “sovereign citizen” movement. Although
represented by appointed counsel, he filed numerous pro se submissions insisting that
he was a “secured party creditor” over whom the district court lacked jurisdiction.
During courtroom appearances he refused to approach the podium when his case was
called, and he frequently interrupted the judge and his own lawyer by talking loudly
from the back of the courtroom. His disruptions led the judge to remove Calderon from
the courtroom and revoke his pretrial release.
This pattern continued on the day jury selection began. Before the prospective
jurors entered the courtroom, Calderon interrupted the prosecutor. He also said that
his appointed lawyers were not his attorneys and interrupted one of them to assert that
counsel could not speak for him because “I am here as a secured party creditor.” The
district court, recalling Calderon’s disruptions during the pretrial proceedings, told him
that his interruptions were prejudicial to himself and to his codefendant. The judge
went on to explain that further disruptions would lead to Calderon’s exclusion from the
courtroom, but even while that warning was being delivered the defendant interrupted
the judge four more times. The judge then offered Calderon an opportunity to promise
that he would end his disruptions, and when Calderon refused to do so, the judge
ordered security officers to remove him from the courtroom. See FED R. CRIM. P.
43(c)(1)(C) (providing that defendant waives right to remain present at trial “when the
court warns the defendant that it will remove the defendant from the courtroom for
disruptive behavior, but the defendant persists in conduct that justifies removal from
the courtroom”); Illinois v. Allen, 397 U.S. 337, 343 (1970) (“[T]rial judges confronted
with disruptive, contumacious, stubbornly defiant defendants must be given sufficient
discretion to meet the circumstances of each case.”); United States v. Benabe, 654 F.3d 753,
769–72 (7th Cir. 2011) (explaining that defendants waived right to be present at trial
No. 12-3717 Page 3
“through their tandem campaign of obstreperous interruptions and frivolous legal
arguments”); United States v. Sterling, 738 F.3d 228, 233, 236–37 (11th Cir. 2013)
(explaining that defendant waived right to be present at trial by responding with
“nonsensical phrases” to court’s warning to end courtroom disruptions). The court told
the jury that Calderon had been excused from attending trial for reasons unrelated to
the case and set up a live video feed so that Calderon could follow the proceedings from
another courtroom and confer with his lawyers. The court also informed Calderon that
he could return if he would promise to end his disruptions.
During the two-week trial, the jury watched the video of Calderon telling the FBI
informants how he gathered “a hundred” (including $20,000 each from four others) to
buy the “coke” and then lost the money and his car. Calderon said the car had a “stash”
in the trunk and added that he protected himself afterward by telling police that his
mechanic had taken his car. Likewise the jury heard recordings of Arroyo’s phone
conversations with the informant arranging the deal on behalf of a buyer with “a
hundred,” and saw phone records showing that Calderon had made more than fifty
calls to codefendant Vasquez on the day he and Covarrubias were arrested. The parties
stipulated that Covarrubias and Vasquez had $111,800 and the keys to Calderon’s car.
Agents showed a video of the hidden compartment in the trunk of Calderon’s car and
explained that these compartments are used to hide drugs during traffic stops. An agent
also said that the street price of cocaine was about $25,000 per kilogram at the time of
the failed deal. The government introduced Calderon’s police report asserting that
Vasquez, whom he described as his mechanic, had taken his car to make repairs but
never returned it. Agents testified that Calderon repeated the same story to them when
they interviewed him at his house two months after the police report was filed. They
added that Calderon had denied knowing about a hidden compartment in his car and
denied losing a large sum of money. Calderon’s lawyers did not object to the admission
of any of this evidence. The district court denied Calderon’s motion for a judgment of
acquittal. See FED. R. CRIM. P. 29(c).
At sentencing Calderon apologized for disrespecting the district court, saying
that he had been “brainwashed” and “misled” by members of the sovereign-citizen
movement after his arrest. The parties agreed that Calderon’s criminal history score was
I and his base offense level 30 (because the intended quantity of cocaine was between
3½ and 5 kilograms, see U.S.S.G. § 2D1.1(c)(5)), but they disagreed whether the court
should add two levels for obstruction of justice, see id. § 3C1.1. The government sought
the adjustment based on Calderon’s lies to FBI investigators and also described in its
version of the offense how Vasquez recounted that Calderon had approached him two
No. 12-3717 Page 4
months after the failed drug deal and told Vasquez that if he forgot about Calderon’s
car, then Calderon would forget about everything else. Calderon did not dispute these
facts, but he argued that his police report and lies to the FBI did not burden government
resources or obstruct the investigation, and that his statements to Vasquez did not
suggest that he was threatening him. The district court sided with the government,
concluding that Calderon had intentionally impeded the drug investigation by lying to
the FBI agents and also had tried to influence Vasquez, the purported “mechanic,” to
corroborate his false story of the stolen car.
In his Anders brief, counsel first analyzes whether Calderon could challenge the
sufficiency of the evidence and concludes that this potential claim would be frivolous.
Calderon disagrees with counsel’s assessment, contending in his Rule 51(b) submission
that the evidence demonstrated, not a conspiracy, but a buyer-seller relationship
between himself and the seller. We agree with counsel. It is true that a routine buyer-
seller relationship does not establish that the buyer and seller conspired to distribute
drugs. See, e.g., United States v. Brown, 726 F.3d 993, 998–99 (7th Cir. 2013). But the
government never charged Calderon with conspiring with the seller (who happened to
be an informant). Rather, Calderon was charged in a conspiracy involving others who
were helping him buy cocaine, and the prosecutor introduced evidence that Calderon
had gathered enough money to buy four kilograms of cocaine and also provided a car
with a hidden compartment to facilitate the purchase. We have explained that evidence
of pooling money and sharing resources is sufficient to show that a defendant sought to
further the objectives of a conspiracy. See United States v. Martin, 618 F.3d 705, 737 (7th
Cir. 2010); United States v. Harris, 567 F.3d 846, 851 (7th Cir. 2009).
Counsel next considers whether Calderon could dispute the two-level upward
adjustment for obstruction of justice and properly concludes that this challenge would
be frivolous. Given the district court’s factual finding that Calderon lied to FBI agents
to obstruct their investigation and also tried to encourage codefendant Vasquez to
withhold truthful testimony, we would find no error in the court’s application of the
guideline. We have explained that obstruction of justice includes lying in order to
thwart an investigation, see United States v. McKinney, 686 F.3d 432, 437–38 (7th Cir.
2012); United States v. Pellmann, 668 F.3d 918, 926–27 (7th Cir. 2012); United States v.
Powell, 576 F.3d 482, 498 (7th Cir. 2009), as well as coaxing witnesses or codefendants to
present a consistent cover-up, see United States v. Sandoval, 668 F.3d 865, 870–71 (7th Cir.
2011); United States v. Strode, 552 F.3d 630, 634–35 (7th Cir. 2009); United States v. House,
551 F.3d 694, 699–700 (7th Cir. 2008). In his Rule 51(b) response Calderon asserts that he
would argue on appeal that the district court’s application of this upward adjustment is
No. 12-3717 Page 5
inconsistent with the Supreme Court’s recent decision in Alleyne v. United States, 133
S. Ct. 2151 (2013). But the guideline provision affected only his advisory range, so this
challenge would be frivolous. See id. at 2163; United States v. Hernandez, 731 F.3d 666, 672
(7th Cir. 2013).
Counsel finally evaluates whether Calderon could challenge his prison sentence
as unreasonable and again concludes that this potential claim would be frivolous. We
agree. The district court considered Calderon’s arguments in mitigation and decided
that 121 months is the appropriate sentence given his lack of prior convictions yet
apparent familiarity with the drug trade. Counsel has not identified any ground to
rebut the presumption that this term is reasonable, see Rita v. United States, 551 U.S. 338,
347 (2007); United States v. Jones, 696 F.3d 695, 700 (7th Cir. 2012), nor can we.
The motion to withdraw is GRANTED, and the appeal is DISMISSED.