United States v. Pizana, Yuriana , 267 F. App'x 469 ( 2008 )

NONPRECEDENTIAL DISPOSITION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 January 30, 2008
Decided February 29, 2008
Before
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 06-3516
UNITED STATES OF AMERICA, Appeal from the United States District Court
Plaintiff-Appellee, for the Northern District of Illinois, Eastern
Division
v.
No. 05-CR-430-1
YURIANA PIZANA,
Defendant-Appellant. Blanche M. Manning,
Judge.
ORDER
Yuriana Pizana challenges her sentence of 87 months’ imprisonment for attempt to
possess cocaine with intent to distribute. See 21 U.S.C. §§ 846, 841(a)(1). She argues that the
district court presumed that a sentence within the guidelines range was the appropriate sentence.
We affirm Pizana’s sentence because a full and fair reading of the sentencing transcript shows
that the district judge chose the sentence that she thought best comported with the statutory
sentencing factors in 18 U.S.C. § 3553(a).
In April 2005 Pizana met in Fresno, California with an undercover city police officer,
whom Pizana believed was a drug supplier, and offered on behalf of an unnamed individual to
purchase a large number of kilograms of cocaine. Pizana says that she agreed to arrange the sale
on behalf of this person because he had previously lent her money. The sale was confirmed the
next day after the undercover officer agreed to Chicago as the location of the sale and after
Pizana tasted and approved of a sample of the cocaine. The original unnamed purchaser
No. 06-3516 Page 2
eventually backed out of the deal, but Pizana found a new buyer who agreed to buy 20 kilograms
of the cocaine (some to be sold on credit) and to pay Pizana $1,000 for each kilogram. In early
May, Pizana and an undercover DEA agent—who purported to be the undercover police
officer’s associate—met in Chicago to complete that sale, and Pizana was arrested. She
ultimately pleaded guilty to attempt to possess cocaine with intent to distribute. See 21 U.S.C.
§§ 846, 841(a)(1). The sentencing court calculated an advisory guidelines range of 87 to 108
months, which neither party challenged.
But at sentencing Pizana’s attorney argued that, in light of the factors set forth in 18
U.S.C. § 3553(a), a sentence of time served (approximately 16 months) would be reasonable.
Defense counsel represented that Pizana was a minor player—in way over her head—who had
not previously been involved in drug dealing. As support for that representation, counsel
emphasized that Pizana had no prior convictions or arrests. Counsel explained that Pizana
agreed to participate in this deal only because she needed money to take care of her son and
mother. He also asked for leniency so Pizana, a single mother, could continue to raise her son.
And finally, counsel purported that while the attempt here was completed, Pizana never had the
funds to complete the purchase.
The district judge discussed defense counsel’s points at length. The judge began by
noting that, examining the § 3553(a) factors as she “must,” she didn’t “think any of these factors
or these issues that [defense counsel] or Ms. Pizana . . . have set out actually provide a
compelling reason to go below the guideline range.” The judge sympathized with Pizana’s
desire to continue caring for her son in the future, but found that this failed to distinguish her
from any other parent facing incarceration. The judge also found credible Pizana’s explanation
that she committed this crime in order to support her family, but the judge reasoned that it is not
appropriate to support one’s family by engaging in illegal activity. Thus, said the judge,
Pizana’s arguments “make light of the seriousness of the offense.” The judge explained that had
all gone as planed, an “enormous” quantity of cocaine “would have quickly filtered into the
streets of a major city.” And because it was always Pizana’s intent to complete the transaction,
the judge found it irrelevant to weighing the seriousness of the offense that Pizana might not, at
the time she was caught, have had the funds to do so. The judge lastly found Pizana’s
representation that she was a “real novice” to the drug trade undermined by her conduct during
the offense, especially that she had tasted the cocaine and commented on its quality. The judge
concluded by saying, “I see no basis to depart downward, number one, because of Booker and,
number two, because I think in light of what transpired here there is not—I have not been shown
any factors that suggest there should be a departure.” She sentenced Pizana at the low end of the
guidelines range to 87 months’ imprisonment.
On appeal, Pizana argues that the district court erroneously presumed that a within-
guidelines sentence was appropriate instead of fashioning a sentence with reference to the §
3553(a) factors. In support, Pizana points to the district judge’s statements that she did not
“think any of [the issues or evidence Pizana presented] . . . provide a compelling reason to go
below the guideline range” and similarly that the she had “not been shown any factors that
suggest there should be a departure.” The government responds that a full reading of the
No. 06-3516 Page 3
sentencing transcript belies the notion that the judge believed herself constrained in the manner
Pizana suggests.
A district court may not apply a presumption that a sentence within the guidelines is
appropriate. Rita v. United States, 127 S. Ct 2456, 2465 (2007). Only an appellate court may
apply such a presumption. Id.; United States v. Schmitt, 495 F.3d 860, 864 (7th Cir. 2007). The
guidelines range must be accurately calculated, and a district judge can derive “insight” from it.
United States v. Sachsenmaier, 491 F.3d 680, 685 (7th Cir. 2007). But the judge must ultimately
pronounce a sentence based on the factors in § 3553(a) without presuming that a within-
guidelines sentence is favored. See id.; United States v. Wachowiak, 496 F.3d 744, 749 (7th Cir.
2007).
A full and fair reading of the sentencing transcript shows that the district judge chose a
within-guidelines sentence because she thought that, in this case, it best comported with the
statutory sentencing factors—not because she thought all guidelines sentence were
presumptively correct. The judge discussed each of the personal characteristics, see 18 U.S.C. §
3553(a)(1), that Pizana pointed to—her financial distress and her desire to care for her son—but
found that neither outweighed the seriousness of the offense, see id. § 3553(a)(2)(A). Nor was
the offense any less serious than Pizana’s guidelines range contemplated, the judge reasoned,
simply because Pizana might not have had the funds to complete the transaction once it was
arranged; her intent was to purchase the cocaine for eventual distribution. The district court was
also not unreceptive to Pizana’s reasoning that she should receive a below-guidelines sentence
because, as a first time drug buyer, she was outside of the heartland of offenders contemplated
by the guidelines for an offense involving such a large quantity of drugs. Instead, the judge
simply did not believe that Pizana was a true novice to the trade. Based on all of these
considerations, the district court concluded that a sentence at the low end of the guidelines range
was appropriate.
Furthermore, we are not convinced that the comments that Pizana hones in upon even by
themselves indicate that the judge might have ignored the dictates of Rita. The judge’s reference
to a “departure” is easily disposed of. We have explained that we will ignore references like it
unless there is evidence that the judge treated the guidelines as mandatory. See United States v.
Dale, 498 F.3d 604, 611 n.6 (7th Cir. 2007); United States v. Rosby, 454 F.3d 670, 676-77 (7th
Cir. 2006). Pizana does not contend that to be the case here. In fact, the judge informed defense
counsel that “departures” were obsolete when counsel himself used the term. As to the judge’s
comment that she had not been given a “compelling reason” to go below the guidelines, this
court has explained that it would be “unobjectionable” if a judge “said only that, in light of the
discretion he now possesses under Booker and Rita, he was electing to impose a guideline
sentence in this particular case unless the defendant could persuade him otherwise.” Schmitt,
495 F.3d at 865 (emphasis added). The district judge’s comment does not suggest that she
approached this case any differently. She never, for example, referred to a “presumption” of
reasonableness that applies to any and all guidelines sentences. Cf. United States v. Griffin, 493
F.3d 856, 868 (7th Cir. 2007) (vacating defendant’s sentence where judge stated that “the
burden’s on the defendant to overcome the rebuttable presumption that a guideline sentence is
No. 06-3516 Page 4
appropriate”); Schmitt, 495 F.3d at 864-65 (vacating defendant’s sentence where judge stated
that “there is a growing attitude, particularly in the Court of Appeals, . . . that sentences within
the guidelines are presumptively correct”).
For the foregoing reasons, we AFFIRM Pizana’s sentence.