United States v. Sanchez, Julio ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3852
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JULIO JOSE LEON SANCHEZ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 06 CR 88—John C. Shabaz, Judge.
____________
ARGUED SEPTEMBER 25, 2007—DECIDED OCTOBER 19, 2007
____________
Before EASTERBROOK, Chief Judge, and BAUER and
KANNE, Circuit Judges.
KANNE, Circuit Judge. Julio Jose Leon Sanchez pled
guilty to distributing cocaine, 21 U.S.C. § 841(a)(1), and
possessing a firearm after having been convicted previ-
ously of a felony, 18 U.S.C. § 922(g)(1). On appeal Sanchez
challenges his 78-month sentence for those convictions,
arguing that the district court incorrectly calculated his
guidelines range. We affirm.
I. HISTORY
Over the course of three transactions that took place
in June 2005, Sanchez sold approximately 180 grams of
2 No. 06-3852
cocaine to a buyer who was referred to him by a friend.
Unfortunately for Sanchez, his new customer was, in fact,
an undercover officer with the Madison Police Department.
Law-enforcement agents arrested Sanchez upon the
completion of the third drug deal and subsequently
executed a search warrant of his residence; there they
recovered over $4,000 in cash, a large scale covered in
white residue, and a sawed-off black 12-gauge Mossberg
shotgun. Shortly after his arrest a grand jury returned a
six-count indictment, alleging, among other things, that
Sanchez distributed cocaine, and that he possessed the
shotgun after having been convicted previously of a
felony—specifically, a 2004 state conviction in Illinois
for possessing marijuana with the intent to deliver.
Sanchez then entered into a plea agreement, in which he
agreed to plead guilty to the cocaine-distribution and
firearm-possession charges in return for the dismissal of
the remaining four counts. The district court accepted the
plea agreement, and ordered the probation officer to
prepare a presentence investigation report (PSR).
In her PSR, the probation officer used the 2005 edition
of the U.S. Sentencing Guidelines to determine first that
Sanchez’s base offense level was 20 because he committed
the drug and firearms offenses while having a prior drug
conviction. See U.S.S.G. § 2K2.1(a)(4)(A). To this she added
four levels because Sanchez accepted the shotgun in
exchange for cocaine, and thus possessed it “in connec-
tion with” a felony drug-trafficking offense. See id.
§ 2K2.1(b)(5). She then subtracted three levels to reflect
Sanchez’s acceptance of responsibility and his assistance
to the government’s investigation of his crimes. See id.
§ 3E1.1(a), (b). The result was a total offense level of 21.
The officer then determined that Sanchez had a total of
seven criminal-history points, including one point for
his convictions in 2000 for bail jumping and disorderly
conduct (which both stemmed from an incident during
No. 06-3852 3
which he assaulted his mother and threatened to kill his
sister, see id. § 4A1.2 cmt. n.3), and another for his 2001
retail-theft conviction. Seven criminal-history points
resulted in a Criminal History Category of IV, which, when
combined with Sanchez’s total offense level, yielded a
recommended guidelines imprisonment range of 57 to 71
months.
Both parties filed objections to the probation officer’s
guidelines calculations, with Sanchez objecting on two
grounds. First, he argued that the officer incorrectly
assessed one criminal-history point for his retail-theft
conviction because retail theft was a petty crime similar to
the enumerated offenses excluded from criminal-history
computations. See id. § 4A1.2(c)(1)(B). Second, Sanchez
asserted that his bail-jumping and disorderly conduct
convictions should have been excluded from the criminal-
history calculation because those convictions did not
result in a term of probation, or analogous supervision, of
at least one year. See id. § 4A1.2(c)(1)(A); United States v.
Binford, 108 F.3d 723, 727-28 (7th Cir. 1997). The officer
disagreed with both objections, and declined to recalculate
Sanchez’s guidelines range. Meanwhile, the government
filed an objection of its own, arguing that the probation
officer failed to apply a two-level increase in Sanchez’s
offense level to reflect that the shotgun recovered from
his house was stolen. See U.S.S.G. § 2K2.1(b)(4). The
government attached to its objection a copy of an incident
report from the Verona Police Department, which was
designated case number 0412-2003; the report detailed a
complaint made in April 2003 that a black 12-gauge
Mossberg shotgun was stolen. The probation officer agreed
with the government and accordingly increased Sanchez’s
previous total offense level from 21 to 23. The correction
resulted in a new recommended guidelines range of 70
to 87 months’ imprisonment.
4 No. 06-3852
Apparently unhappy that the probation officer rejected
his objections to the PSR and increased his potential
imprisonment range, Sanchez contacted the probation
officer directly and filed a number of pro se objections. As
relevant here, Sanchez challenged the officer’s finding
that he used the shotgun “in connection” with his cocaine-
distribution offense, and the officer’s corresponding
application of § 2K2.1(b)(5). He claimed that he did not
“use” the gun at all, but merely accepted it as “currency”
while “operating some sort of pawn shop” for cocaine. Just
as she did before, the officer rejected Sanchez’s objec-
tions and declined to recalculate his guidelines range.
Sanchez appeared with counsel at his sentencing hear-
ing, and at the outset of the hearing counsel stated that
Sanchez wished to withdraw all objections that he had
submitted pro se—including his objection to the proba-
tion officer’s determination that he used the shotgun
“in connection” with another felony offense. As counsel
explained, Sanchez “reached a conclusion [that] he
desire[d] to withdraw all the independent objections that
he [had] brought independent of my objections and he
wants the [c]ourt to hear that.” After the district court
granted Sanchez’s request and ordered his pro se objec-
tions withdrawn, Sanchez challenged the two-offense-level
increase for possessing a stolen firearm on the grounds
that the increase was based solely on the police incident
report, which, he argued, was unreliable hearsay be-
cause it did not list the serial number of the shotgun that
was reported stolen. In response, the government pre-
sented the testimony of Detective Dawn Johnson of the
Dane County Sheriff ’s Office. Detective Johnson recounted
that she conducted an electronic query for the serial
number taken from the shotgun found in Sanchez’s
house—K2533922—and discovered that a black 12-gauge
Mossberg shotgun with that serial number was reported
stolen to the Verona Police Department in April 2003. The
No. 06-3852 5
government also introduced into evidence a photocopy
of the results of that query, which showed that the stolen
Mossberg shotgun never was recovered and that the case
remained open as case number 0412-2003 with the Verona
Police Department.
The district court overruled the written and spoken
objections to the PSR that Sanchez made through counsel.
The court determined that Sanchez’s bail-jumping and
disorderly conduct convictions were included properly
in his criminal-history calculation; specifically, the court
found that the convictions resulted in Sanchez being
placed on supervision for more than a year pursuant to
deferred-prosecution agreements into which he had
entered as part of his guilty pleas to the crimes. The court
likewise stated that one criminal-history point was
properly assessed for Sanchez’s retail-theft conviction.
As to Sanchez’s total offense level, the court determined
that the police incident report, Detective Johnson’s testi-
mony, and Johnson’s serial-number query sufficiently
established that the shotgun found in Sanchez’s house
was stolen, and thus the two-level increase under
§ 2K2.1(b)(4) was appropriate. The court further stated
that the four-level increase for using the shotgun “in
connection” with another felony offense was warranted
because “the exchange of narcotics for the gun constitutes
possession of a firearm in connection with a felony offense
as contemplated in Section 2K2.1(b)(5).” The court accord-
ingly adopted the recommended guidelines imprison-
ment range of 70 to 87 months. After considering the
parties’ arguments regarding the length of sentence to
impose, the court stated that a sentence in the middle of
the range was appropriate because it would “hold [the]
defendant accountable for his actions and should achieve
the sentencing objectives of punishment, deterrence,
general, and specific, and rehabilitation.” The court then
sentenced Sanchez to 78 months’ imprisonment.
6 No. 06-3852
II. ANALYSIS
Sanchez makes three arguments challenging the dis-
trict court’s calculation of his guidelines imprisonment
range. Specifically, he argues that the district court erred
by (1) including his retail-theft, bail-jumping, and disor-
derly conduct convictions when calculating his criminal-
history category; (2) increasing his total offense level by
two on the basis that the shotgun recovered from his
house was stolen; and (3) increasing his total offense
level by four because he used the shotgun “in connection”
with another felony. We address each of Sanchez’s argu-
ments in turn, reviewing the district court’s application of
the sentencing guidelines de novo, United States v. Lock,
466 F.3d 594, 597 (7th Cir. 2006), and the court’s factual
findings for clear error, United States v. Warren, 454 F.3d
752, 762 (7th Cir. 2006).
A. The District Court’s Calculation of Sanchez’s Criminal
History Category
Sanchez first asserts that the district court incorrectly
calculated his criminal-history category by counting his
retail-theft, bail-jumping, and disorderly conduct convic-
tions, when those convictions should have been excluded
pursuant to § 4A1.2(c)(1). As pertinent here, under
§ 4A1.2(c)(1) convictions for “misdemeanor and petty
offenses” are excluded when computing a defendant’s
criminal-history category if (1) the offense in question is
“similar to” one of several enumerated minor crimes, see
U.S.S.G. § 4A1.2(c)(1); or (2) the convictions resulted in a
sentence of one year or less of probation or analogous
supervision, see id.; United States v. Jones, 448 F.3d 958,
960 (7th Cir. 2006) (“[C]ourt supervision is the functional
equivalent of probation.”); Binford, 108 F.3d at 727-28
(stating that under § 4A1.2(c)(1) “supervision is the
functional equivalent of conditional discharge, which we
No. 06-3852 7
previously have held to be the functional equivalent of
probation”). Seizing on these provisions, Sanchez argues
that his retail-theft conviction should have been ex-
cluded because it was similar to the enumerated crime
“[i]nsufficient funds check”—an awkward label for the
offense of passing a bad check. See United States v. Harris,
325 F.3d 865, 872 (7th Cir. 2003). He also asserts that
the district court should not have assessed one criminal-
history point for his bail-jumping and disorderly con-
duct convictions because those convictions did not result
in a term of supervision of more than one year. These
arguments are frivolous.
Sanchez’s challenge to the inclusion of his retail-theft
conviction warrants little discussion. We, along with
several other circuit courts of appeals, have rejected
repeatedly the contention that a retail-theft conviction
should be excluded when calculating a defendant’s
criminal-history category on the basis that it is similar to
passing a bad check, see Harris, 325 F.3d at 872-73; see
also United States v. Lamm, 392 F.3d 130, 133-35 (5th Cir.
2004); United States v. Waller, 218 F.3d 856, 857-58 (8th
Cir. 2000); United States v. Hooks, 65 F.3d 850, 854-56
(10th Cir. 1995), and Sanchez has offered no compelling
reason why we should revisit this position.
Equally meritless is Sanchez’s contention that the
district court should not have considered his bail-jumping
and disorderly conduct convictions. He argues that,
contrary to the district court’s findings, he was not sub-
ject to over a year of supervision for those convictions.
Sanchez explains that when he pled guilty to those crimes
he was placed on supervision pursuant to two separate
deferred-prosecution agreements—one entered on March
19, 2001, and the other entered on January 14, 2002. As
a result, Sanchez continues, he was not under a con-
tinuous period of supervision during this time; instead,
his supervision under the March 19, 2001, agreement
8 No. 06-3852
was “terminated” before he entered into the January 12,
2002, agreement. He further states that the second period
of supervision pursuant to the January 12, 2002, agree-
ment ended on June 26, 2002, and thus lasted only four-
and-one-half months. Therefore, Sanchez asserts, the
total amount of time on supervision pursuant to both
agreements was less than one year. Aware that he shoul-
ders the burden to proffer evidence supporting this
explanation, see United States v. Salinas, 365 F.3d 582,
587 (7th Cir. 2004); United States v. Willis, 300 F.3d 803,
807 (7th Cir. 2002); United States v. Rivera, 6 F.3d 431,
444 (7th Cir. 1993), Sanchez appends to his brief three
documents that, he claims, show that he was supervised
for less than a year: (1) the March 19, 2001, deferred-
prosecution agreement; (2) the January 14, 2002, deferred-
prosecution agreement; and (3) a Dane County Circuit
Court order dated June 26, 2002, dismissing the bail-
jumping and disorderly conduct charges for his success-
ful completion of the deferred-prosecution program.
However, Sanchez’s explanation regarding the length of
his supervision omits information crucial to his argument,
and the documents he provides contradict his claim that
he was subject to two separate periods of supervision for
a total of less than one year. Sanchez claims that the
first deferred-prosecution agreement—the one entered on
March 19, 2001—was “terminated,” and that he accord-
ingly was removed from supervision when the agreement
ended. Yet he does not say when that agreement ended,
and instead states only that “the record is devoid” of
information regarding when it ended. But this is not
entirely true; the terms of that agreement provide that
it would end on March 1, 2002. And if the agreement
did end before that date, it is Sanchez’s responsibility
on appeal to explain when the agreement actually ended
and to provide the court order removing him from supervi-
sion. See Salinas, 365 F.3d at 587; Rivera, 6 F.3d at 444
No. 06-3852 9
(“ ‘[A] defendant who challenges factual allegations con-
tained in the PSR . . . has the burden of producing some
evidence beyond a bare denial that calls the reliability or
correctness of the alleged facts into question.’ ” (quoting
United States v. Isirov, 986 F.2d 183, 185 (7th Cir. 1993)
(alteration in original))). Indeed, Sanchez does not even
tell us for how long in total he was under supervision.
Looking, then, to the information and documents that
Sanchez does provide, we conclude that he was super-
vised pursuant to the deferred-prosecution agreements
for over one year. Under the March 19, 2001, agreement,
Sanchez was supervised through March 1, 2002. And it
was during that period of supervision that (for reasons
unexplained) Sanchez entered into the second deferred-
prosecution agreement on January 14, 2002, thus con-
tinuing his supervision under deferred prosecution until
June 26, 2002. In short, the documents Sanchez provides
to us show that, although he executed two separate
deferred-prosecution agreements, he was under continuous
supervision from March 19, 2001, through June 26,
2002—a span of 15 months. His challenge to the district
court’s assessment of one criminal-history point for
his bail-jumping and disorderly conduct convictions
therefore fails. See U.S.S.G. § 4A1.2(c)(1).
B. The District Court’s Two-Level Increase of Sanchez’s
Total Offense Level for Possessing a Stolen Firearm
Sanchez next argues that the government failed to prove
by a preponderance of the evidence that the shotgun
recovered from his house was stolen, see United States v.
Birk, 453 F.3d 893, 899 (7th Cir. 2006), and that the
district court accordingly erred by applying a two-level
increase under § 2K2.1(b)(4). According to Sanchez, the
only evidence the government submitted was the Verona
Police Department incident report showing that a black
10 No. 06-3852
12-gauge Mossberg shotgun was reported stolen approxi-
mately two years before his arrest. That report, he asserts,
was “double hearsay” that the district court should not
have considered, particularly when the report was unreli-
able; as Sanchez points out, the report did not provide
either a serial number for the shotgun that was re-
ported stolen or a specific description of the stolen
shotgun that could be matched to the shotgun found in
his house.
Sanchez is correct to label the report as a form of
hearsay, see Pecoraro v. Walls, 286 F.3d 439, 443-44 (7th
Cir. 2002), but this designation alone is irrelevant to the
issue of whether the district court erred by considering
it. A sentencing court “may consider a wide variety of
information that would be inadmissible at trial,” see
United States v. Cavender, 228 F.3d 792, 802 (7th Cir.
2000), including evidence that is hearsay, see United States
v. Davila-Rodriguez, 468 F.3d 1012, 1014 (7th Cir. 2006);
United States v. Roche, 415 F.3d 614, 618 (7th Cir. 2005).
Thus, a sentencing court clearly errs by considering
hearsay evidence only if the evidence was devoid of any
indicia of reliability. See Davila-Rodriguez, 468 F.3d at
1014; Roche, 415 F.3d at 618; see also Warren, 454 F.3d
at 762.
We have no quarrel with Sanchez’s point that the
incident report alone was not reliable evidence. After all,
the report stemmed from an unrelated crime that hap-
pened two years before Sanchez’s arrest. Moreover, as
Sanchez points out, the report did not provide the
serial number for the gun that was reported stolen, and
merely provided a general description of that gun. In fact,
there was no information in the report connecting the
shotgun that was reported stolen to the shotgun re-
covered from Sanchez’s house.
However, Sanchez conveniently ignores that the in-
cident report was not the only evidence the government
No. 06-3852 11
introduced to show that the shotgun found in his house
was stolen. The government also introduced the unrebut-
ted testimony of Detective Johnson, who recounted that
she undertook an electronic query for the serial number
taken from the shotgun found in Sanchez’s house, and
discovered that a black 12-gauge Mossberg shotgun with
the same serial number was reported stolen to the Verona
Police Department. The government further introduced
a photocopy of the query’s results, which revealed that
the shotgun that was reported stolen never was re-
covered, and that the case remained open with the Verona
Police Department as number 0412-2003—the same case
number designation on the Verona Police Department
incident report. Not only did Johnson’s testimony and the
serial-number query establish by a preponderance of the
evidence that the shotgun recovered from Sanchez’s
house was stolen, see Birk, 453 F.3d at 899, but the
evidence also confirmed the reliability of the incident
report by corroborating the information provided within
it, see United States v. Martinez, 289 F.3d 1023, 1028-29
(7th Cir. 2002) (holding that reliability of hearsay evidence
may be established by corroborating evidence); United
States v. Thomas, 280 F.3d 1149, 1154 (7th Cir. 2002)
(same). The district court therefore did not err, clearly or
otherwise, by concluding that the shotgun recovered from
Sanchez’s house was stolen. See Warren, 454 F.3d at 762.
C. The District Court’s Four-Level Increase of Sanchez’s
Total Offense Level for Using the Shotgun “In Connec-
tion” with Another Felony and the Reasonableness
of His 78-Month Sentence
Finally, Sanchez contends that the district court improp-
erly calculated his total offense level by applying a four-
level increase on the grounds that he used his firearm “in
connection” with another felony offense. See U.S.S.G.
12 No. 06-3852
§ 2K2.1(b)(5). Specifically, he renews his pro se objec-
tion to the PSR that he did not “use” the gun as contem-
plated by § 2K2.1(b)(5), but instead accepted it merely “to
facilitate a drug transaction.” But at his sentencing
hearing Sanchez directed his attorney to withdraw this
objection and chose not to renew it. And because
Sanchez intentionally relinquished this challenge before
the district court, we need not address it on appeal. See
United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th
Cir. 2005) (“There may be sound strategic reasons why
a criminal defendant will elect to pursue one sentencing
argument while also choosing to forego another, and when
the defendant selects as a matter of strategy, he also
waives those arguments he decided not to present.”);
United States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000)
(finding sentencing challenge waived when attorney
stated at hearing “ ‘I spoke with [defendant] this morning,
and he indicated to me that we . . . have no objections to
the presentence report’ ”); see also United States v. Cooper,
243 F.3d 411, 416 (7th Cir. 2001) (finding argument
waived because failure to raise it in district court was
not “a mere oversight”); United States v. Gutierrez, 130
F.3d 330, 332 (8th Cir. 1997) (holding that defendant
waived argument by making “calculated decision” not to
object).
Similarly, Sanchez does not challenge his sentence
under United States v. Booker, 543 U.S. 220 (2005), as
unreasonable in light of the sentencing factors that 18
U.S.C. § 3553(a) outlines. We presume that Sanchez’s 78-
month sentence is reasonable because it falls within the
correctly calculated guidelines range of 70 to 87 months.
See Rita v. United States, 127 S. Ct. 2456, 2465 (2007);
United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.
2005). Having heard no argument to the contrary, we
conclude that it is. See United States v. Dyer, 464 F.3d 741,
744 (7th Cir. 2006); United States v. Harper, 463 F.3d 663,
670 (7th Cir. 2006).
No. 06-3852 13
III. CONCLUSION
We AFFIRM Sanchez’s 78-month sentence.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-19-07