United States v. Acosta, Spring L. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-3598 & 05-3661
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SPRING L. ACOSTA and
CANDACE R. RADERMACHER,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Western District of Wisconsin.
Nos. 05 CR 45 & 05 CR 46—Barbara B. Crabb, Chief Judge.
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ARGUED NOVEMBER 3, 2006—DECIDED FEBRUARY 5, 2007
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Before EASTERBROOK, Chief Judge, and FLAUM and
WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. This appeal requires us to
consider the extent to which a member of a conspiracy
can be held liable under the United States Sentencing
Guidelines for the use of a minor where there is no evi-
dence that the defendant personally directed or encour-
aged the minor in any way. We conclude that the dis-
trict court misapplied § 3B1.4 of the Guidelines in sen-
tencing Spring Acosta, one of the two defendants in this
appeal, when it imposed an enhancement for the use of
a minor. We therefore vacate her sentence and remand for
2 Nos. 05-3598 & 05-3661
resentencing. The other defendant, Candace Radermacher,
argues only that the district court should have declined
to apply § 2D1.1(c)(1) of the Guidelines because of that
provision’s disparity in punishment for similar quantities
of powder cocaine and crack cocaine. Because our case-
law forecloses this argument, we affirm Radermacher’s
sentence.
I. BACKGROUND
Acosta and Radermacher were both involved in a long-
running cocaine conspiracy in and around the Lac Courte
Oreilles Reservation (LCO) in Sawyer County, Wisconsin.
The LCO Latin Kings gang is a violent organization that
committed acts of murder and arson in furtherance of a
wide-ranging criminal conspiracy. Acosta ran powder
and crack cocaine from Milwaukee to the LCO for resale,
and served as secretary for the Latin Kings gang at the
Reservation. After undercover agents purchased powder
and crack cocaine from her, she confessed to her role in
the organization. She also admitted that she knew that
two minors, Ray Quagon and Michael Blackdeer, sold
cocaine for the Latin Kings. As for Radermacher, a fed-
eral investigation revealed that she served as treasurer
of the LCO Latin Kings for several years and was involved
in all purchases and sales of cocaine, including vast
amounts of crack cocaine. Radermacher made multiple
statements to this effect in interviews with the Govern-
ment.
Both Acosta and Radermacher pled guilty to con-
spiracy to possess cocaine and crack cocaine with intent
to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and
846. The presentence report recommended that Acosta
receive an enhancement for the use of a minor in the
conspiracy, U.S.S.G. § 3B1.4. She filed a written objec-
tion to the report arguing that application of the use of
Nos. 05-3598 & 05-3661 3
a minor enhancement was improper, since Radermacher
had told the two minors (Quagon and Blackdeer) that
they were selling crack for Radermacher and Rader-
macher’s husband, and not the Latin Kings gang. Acosta
knew that Quagon and Blackdeer were members of the
gang and that they sold crack, but stated that her per-
sonal involvement with them was limited. The district
court, using the 2004 version of the Guidelines, applied
a two-level enhancement under § 3B1.4.
Acosta also argued that she should receive a sentence
below the Guidelines range on the basis of coercion or
duress under U.S.S.G. § 5K2.12. She testified at her
sentencing hearing that her husband Gregorio Acosta, the
leader of the LCO Latin Kings, had psychologically and
emotionally abused her when she asked to leave the
conspiracy. She also suggested that he physically abused
her, through violence and through acts such as forcing
her to run home on a hot day while pregnant. Acosta
testified that even though she continued selling cocaine
after Gregorio went to prison, she did so only because she
was receiving threats from Gregorio’s father. Acosta’s
mother and uncle also testified at her sentencing that
Gregorio abused her. The district court did not address
the coercion argument, and sentenced Acosta to 262
months’ imprisonment.
The district court calculated a base offense level of 38
for Radermacher, based on the presentence report’s find-
ing that her conduct involved 1.5 kilograms or more of
cocaine base. Radermacher objected, arguing that the
district court should reject the Guidelines’ punishment
of crack cocaine at a rate one hundred times that of
powder cocaine. The district judge stated, “I have some
real personal concerns about the differential between
crack and powder cocaine, but we do have a Congressional
determination that that is the differential that is to be
applied, and I think I am bound by that determination.”
4 Nos. 05-3598 & 05-3661
After considering the factors set out in 18 U.S.C. § 3553(a),
the court sentenced Radermacher to 360 months’ im-
prisonment.
II. ANALYSIS
After the United States Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005), we review
sentences imposed by the district court for reasonable-
ness. See United States v. Brazinskas, 458 F.3d 666, 667
(2006). Reasonableness is determined by considering the
factors set forth in 18 U.S.C. § 3553(a), Booker, 543 U.S. at
264, and a sentence within the properly calculated Guide-
lines range is presumptively reasonable. See United States
v. Mykytiuk, 415 F.3d 606 (7th Cir. 2006); see also Rita v.
United States, 177 Fed. App’x 357 (4th Cir. 2006), cert.
granted, 75 U.S.L.W. 3243 (U.S. Nov. 3, 2006) (No. 06-
5754) (grant of certiorari on question whether a sentence
within Guidelines range is entitled to presumption of
reasonableness); United States v. Gama-Gonzalez, 469
F.3d 1109, 1111 (7th Cir. 2006). We review the district
court’s application of the Guidelines de novo. United States
v. Romero, 469 F.3d 1139, 1147 (7th Cir. 2006).
A. Spring Acosta’s Sentence
1. Enhancement for Use of a Minor
Acosta first argues that the district court erred by
applying a two-level enhancement for using a minor in the
commission of the offense. Section 3B1.4 of the Guidelines
provides that “[i]f the defendant used or attempted to
use a person less than eighteen years of age to commit
the offense or assist in avoiding detection of, or apprehen-
sion for, the offense, increase by 2 levels.” The first
application note to that section states that “ ‘used or
Nos. 05-3598 & 05-3661 5
attempted to use’ includes directing, commanding, encour-
aging, intimidating, counseling, training, procuring,
recruiting, or soliciting.”
The circuits are divided on the meaning of the term “use”
in § 3B1.4. We have observed that a “defendant ‘used
minors in the commission of his crimes’ if his affirmative
actions involved minors in his criminal activities.” United
States v. Ramsey, 237 F.3d 853, 859 (7th Cir. 2001)
(quoting United States v. Vivit, 214 F.3d 908, 920 (7th Cir.
2000)). In Ramsey, we affirmed the sentencing court’s
application of the enhancement for use of a minor
where the defendant had directed a minor to sell crack
cocaine. Id. at 860-61. Four circuits have agreed that the
enhancement applies only when the defendant by some
affirmative act helps to involve the minor in the criminal
enterprise. See United States v. Pojilenko, 416 F.3d 243,
247 (3d Cir. 2005); United States v. Suitor, 253 F.3d 1206,
1210 (10th Cir. 2001); United States v. Parker, 241 F.3d
1114, 1120-21 (9th Cir. 2001); United States v. Butler, 207
F.3d 839, 849 (6th Cir. 2000).1
In contrast, three circuits take the position that an
enhancement under § 3B1.4 is warranted where, although
the defendant did not personally engage a minor, he could
“reasonably foresee” a co-conspirator’s use of a minor. See
United States v. Lewis, 386 F.3d 475, 479-80 (2d Cir.
2004); United States v. McClain, 252 F.3d 1279, 1287-88
(11th Cir. 2001); United States v. Patrick, 248 F.3d 11, 27-
28 (1st Cir. 2001). These circuits define “use” in § 3B1.4 by
1
Complicating matters somewhat, we are at odds with these
circuits on the question of what exactly constitutes an affirma-
tive act, see Ramsey, 237 F.3d at 859 (pointing out difference),
but that difference is immaterial to this appeal because the
government does not argue that Acosta’s affirmative acts
involved minors.
6 Nos. 05-3598 & 05-3661
reference to § 1B1.3(a), a general application provision
which provides: “Unless otherwise specified, . . . adjust-
ments in Chapter Three[ ] shall be determined on the basis
of . . . all reasonably foreseeable acts and omissions of
others in furtherance of the jointly undertaken criminal
activity.” Although they do not all explicitly mention the
decision, each of these cases is an extension of the Su-
preme Court’s ruling in Pinkerton v. United States, 328
U.S. 640 (1946), in which the Court held that a defendant
is liable for the reasonably foreseeable acts of his co-
conspirators done in furtherance of the conspiracy.
Acosta was undeniably aware of the minors’ participa-
tion, but there is no evidence that she independently
directed or encouraged Quagon and Blackdeer, or that she
played any role in bringing them into the criminal enter-
prise. Indeed, at argument, the government conceded
that Acosta did not “direct[ ], command[ ], encourage[ ],”
or do any other act toward the minors that is spelled out
in application note one of § 3B1.4. The parties therefore
agree that if we side with Acosta, who asks us to con-
tinue following the majority “affirmative act” rule, the
enhancement does not apply. And if we side with the
government, which urges us to adopt the minority “reason-
ably foreseeable” test, it does.
Among our fellow circuits taking the “affirmative act”
position, only the Third has explicitly rejected the reason-
ably foreseeable test. In Pojilenko, 416 F.3d at 248, that
court, citing the Fourth Circuit’s decision in United States
v. Moore, 29 F.3d 175, 178 (4th Cir. 1994) (discussing an
enhancement based on § 3B1.3 for abusing a position of
trust), reasoned that application of Pinkerton liability to
§ 3B1.4 would conflict with the intention of the Sentenc-
ing Commission as evidenced by the general structure
of Chapter 3, Part B of the Guidelines. See Pojilenko,
416 F.3d at 248-49. The court noted that “Part B permits
sentencing adjustments based on . . . whether a particular
Nos. 05-3598 & 05-3661 7
defendant was an organizer, leader, manager or super-
visor of a group criminal activity,” and concluded by quot-
ing the Fourth Circuit’s holding in Moore:
These roles in the offense provisions were designed
to permit sentencing judges to make individualized
distinctions among defendants engaged in a crimi-
nal enterprise. By their very nature, the role in the
offense adjustments cannot be based upon the
actions of co-conspirators; for example, a defendant
who was not the organizer of criminal activity
could not receive a role enhancement merely
because it was reasonably foreseeable that a co-
conspirator would organize a criminal scheme.
Pojilenko, 416 F.3d at 248 (quoting Moore, 29 F.3d at 179)
(brackets omitted). As for reliance on § 1B1.3(a), the
Pojilenko court concluded that the circuits that use the
“reasonably foreseeable” test have ignored the words,
“[u]nless otherwise specified,” which precede § 1B1.3(a)’s
command to impute to defendants all reasonably foresee-
able acts by co-conspirators. Section 3B1.4 does other-
wise specify, the court stated; by its terms, it applies
only if “the defendant used or attempted to use” a minor
in the commission of the offense (emphasis added).
Pojilenko, 416 F.3d at 248.
We find the Third Circuit’s reasoning persuasive.
Pinkerton liability makes no sense in the context of the
individualized enhancements set out in section 3B of the
Guidelines, which seek to punish the particular behavior
of individual members of a conspiracy. Indeed, the sec-
tion’s introductory note states that the part “provides
adjustments to the offense level based upon the role the
defendant played in committing the offense” (emphasis
added). The Government was unable to identify any case
in which courts have applied Pinkerton principles to the
other enhancements listed in Part B of Chapter 3 of the
8 Nos. 05-3598 & 05-3661
Guidelines. Since Acosta did not personally “use” a minor
in committing the offense, the district court’s decision to
apply this enhancement must be vacated.
2. Coercion and Duress
Acosta next argues that the district court should have
lowered her sentence on the basis of coercion and duress;
at sentencing, the court did not mention her argument
on this point. We find no error. In United States v.
Cunningham, 429 F.3d 673, 678 (7th Cir. 2005), we
observed that “[a] sentencing judge has no more duty
than we appellate judges do to discuss every argument
made by a litigant; arguments clearly without merit
can, and for the sake of judicial economy should, be
passed over in silence.” We further observed that a “judge’s
failure to discuss an immaterial or insubstantial dispute
relating to the proper sentence would be at worst a
harmless error.” Id. at 679. In Cunningham, we ulti-
mately reversed and remanded for resentencing on the
basis of the judge’s silence on an important argument,
noting:
We cannot have much confidence in the judge’s
considered attention to the factors in this case,
when he passed over in silence the principal
argument made by the defendant even though the
argument was not so weak as not to merit dis-
cussion, as it would have been if anyone
acquainted with the facts would have known
without being told why the judge had not ac-
cepted the argument.
Id. The argument ignored in Cunningham was that the
defendant should receive a sentence below the Guidelines
range because of his long history of severe psychiatric
problems. Id. at 677-78. The defendant’s attorneys had
Nos. 05-3598 & 05-3661 9
produced substantial evidence of his long-standing psychi-
atric illness. Id.But Acosta’s point about coercion was not her principal
argument; and, more fundamentally, the contention was
weak in light of all the evidence that she willingly partici-
pated in the drug conspiracy. She was not a bit player
in the LCO Latin Kings gang, but rather worked as an
officer with substantial responsibilities. Her participation
was not limited to a few acts but rather took place,
uninterrupted, over a period of years. She continued her
work even after Gregorio, her alleged manipulator, was
imprisoned. She has provided no real evidence of coercion
outside of her own self-serving testimony. Acosta’s
mother’s testimony was simply that Gregorio was abusive,
but not that the abuse was directed at forcing her to
remain a part of the drug conspiracy. In short, this is not
one of the rare cases where a sentence within a properly
calculated Guidelines range was unreasonable. See
United States v. Cardenas, 445 F.3d 1091, 1094-95 (8th
Cir. 2006). If there was any coercion, we are unpersuaded
that it was sufficient to warrant a lower sentence. Any
error in failing to mention the coercion argument was
therefore harmless. See Cunningham, 429 F.3d at 678.
B. Candace Radermacher’s Sentence
Radermacher raises only one argument on appeal: that
the district court should not have applied U.S.S.G.
§ 2D1.1(c), which sets out a punishment schedule that
treats one gram of crack cocaine the same as one hundred
grams of powder cocaine. But we have already held that
a district court does not err by applying § 2D1.1(c). United
States v. Gipson, 425 F.3d 335 (7th Cir. 2005) (per curiam).
Our caselaw compels us to reject this argument.
10 Nos. 05-3598 & 05-3661
III. CONCLUSION
Spring Acosta’s sentence is VACATED. Her case is
REMANDED for further proceedings consistent with this
opinion. The judgment of the district court as to Candace
Radermacher is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-5-07