United States v. Marcos Morales , 426 F. App'x 450 ( 2011 )

NONPRECEDENTIAL DISPOSITION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 April 27, 2011
Decided June 7, 2011
Before
RICHARD D. CUDAHY, Circuit Judge
TERENCE T. EVANS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 10-3081
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of Illinois,
Eastern Division.
v. No. 95 CR 742-1
MARCO MORALES, William T. Hart,
Defendant-Appellant. Judge.
ORDER
Fifteen years ago Marco Morales was arrested and indicted for selling cocaine to an
informant. After Morales provided substantial assistance to the government and pleaded
guilty to a superseding information covering charges for fraud and bribery, he fled to
Mexico instead of reporting to serve his sentence. Twelve years later, Morales was
extradited to the United States, where he pleaded guilty to his original drug charges and
was sentenced to 84 months’ imprisonment. Morales appeals the sentence, arguing that the
district court committed procedural error by refusing to lower his offense level to reflect an
acceptance of responsibility for the drug charges under U.S.S.G. § 3E1.1. Because the
No. 10-3081 Page 2
district court adequately justified its refusal to award acceptance points to Morales, we
affirm its judgment.
Marco Morales sold cocaine in 1994 to an FBI informant. Morales was arrested and
indicted in December 1995, and five weeks later pleaded guilty to distributing cocaine in
violation of 18 U.S.C. § 841(a)(1). The probation officer calculated Morales’s guidelines
range of 60 to 71 months’ imprisonment, but the parties repeatedly postponed his
sentencing hearing so that Morales could assist the government with a related corruption
investigation.
During Morales’s cooperation, the government learned that, in his capacity as a
construction company operator, Morales had defrauded labor unions and bribed a Chicago
official who awarded city contracts. Morales testified before a grand jury and helped record
a meeting with a city official. The government filed a superseding information, and
Morales pleaded guilty in July 1997 to mail fraud, 18 U.S.C. § 1341, and bribery, 18 U.S.C.
§ 666. The benefit to Morales was that the new charges would not jeopardize his status as a
lawful permanent resident. In his superseding plea agreement, Morales also stipulated to
the facts underlying the cocaine offense. His guidelines imprisonment range was 57 to 71
months. The district court sentenced Morales to 59 months’ imprisonment and granted the
government’s motion to dismiss the original indictment on the drug charge. The court
allowed Morales, released on bond up until that point, to self-report to the Bureau of
Prisons to begin his sentence.
But Morales did not report to federal custody because he fled to Mexico, fearing (he
says) his and his family’s safety after having received death threats for cooperating with
the government. Seven years later Mexican authorities finally apprehended Morales. The
United States sought to extradite Morales, but the Mexican government refused—the
Mexican statute of limitations for arrest to serve an unexecuted sentence had elapsed—and
released him. To circumvent this procedural bar, two years later the United States
government recharged Morales with one count of distributing cocaine (based on the
original 1994 cocaine sale to which he had earlier stipulated in the plea agreement). The
justification for the reinstatement of the drug charge was that Morales’s flight was
considered to be a breach of his plea agreement, thus negating the government’s promise to
forego prosecution of the drug dealing conduct. The Mexican authorities again arrested
Morales and, after further contested extradition proceedings, he was returned to the United
States nearly three years later, in September 2009.
Shortly thereafter, Morales pleaded guilty to distribution. In Morales’s presentence
investigation report, the probation officer recommended a two-level decrease under
U.S.S.G. § 3E1.1(a) for acceptance of responsibility. Both parties objected. Morales asserted
No. 10-3081 Page 3
that his offense level should be decreased by one more level, pursuant to § 3E1.1(b), to
reflect the assistance he provided to the government. The government contended that by
fleeing to Mexico for 12 years, Morales had not timely accepted responsibility and therefore
should not receive any decrease. And, the government added, by resisting extradition twice
Morales further showed a lack of acceptance and forced the government into a lengthy
fight, wiping out any resource savings from Morales’s guilty plea. Morales countered that
the district court should evaluate his acceptance of responsibility for the distribution charge
by examining his behavior once he was back in United States custody in 2009, not for the
flight from his unrelated fraud and bribery conviction in 1997. He also pointed out that,
when initially charged with distribution, he pleaded guilty within five weeks; the second
time he also entered a prompt plea of guilty when he was eventually returned to the
United States. Finally, Morales argued that the exercise of his legal right to contest
extradition should not adversely affect him at sentencing.
The district court decided not to lower Morales’s offense level for acceptance of
responsibility, citing his years hiding out in Mexico and the need to extradite him:
COURT: And some of what you say may have some validity with
respect to the first extradition proceeding, more validity. But the second
extradition proceeding was simply an effort to stop when he had been
indicted again on this offense.
Originally he was indicted on it. Then he made a plea agreement with
the government and pleaded guilty to frauds and kickback charges, which is
on what was before the court then. And because of the international law,
that’s being dismissed because Mexico wouldn’t extradite him on those
charges, but they would extradite him on the drug charge. And then he
fought the extradition.
No, sir. I have to agree with the government. In this case this is not a
case for prompt acceptance of responsibility. The entire number of years in
Mexico, finding out what the charges were and then coming back here, and
then finally being brought back here under force -- under force of law, I
should say probably, that does not constitute, in my judgment, a case in
which there has been, quote, an acceptance of responsibility.
It may be a reality here today that he pleaded guilty, but certainly I
can’t ignore and I don’t think I should ignore the history here.
No. 10-3081 Page 4
Therefore, I will decline to allow additional deduction for that
purpose.
The court calculated Morales’s total offense level of 28, and a Category I criminal history,
yielding a guidelines imprisonment range of 78 to 97 months. The court imposed a sentence
of 84 months’ imprisonment, and dismissed the fraud and bribery charges against Morales
(a required condition of his extradition).
On appeal, Morales makes one argument: that the district court procedurally erred
when it refused to apply the two-level decrease under § 3E1.1(a). He focuses on what he
characterizes as the district court’s impermissible reliance on (1) his flight to Mexico, which
Morales argues predated his indictment for, and was unrelated to, his offense of conviction,
and (2) his resistance to extradition.
Under the advisory guidelines, a defendant may receive a two-level decrease in his
offense level if he “clearly demonstrates acceptance of responsibility for his offense.”
U.S.S.G. § 3E1.1(a). Morales maintains that he did so after he returned to the United States
in 2009 because he admitted the elements of his offense and expressed remorse. These
steps, though consistent with an acceptance of responsibility, do not entitle Morales to a
reduction as a matter of right and “may be outweighed by conduct of the defendant that is
inconsistent with such acceptance of responsibility.” U.S.S.G. § 3E1.1 cmt. n.3; United States
v. Sellers, 595 F.3d 791, 793 (7th Cir. 2010). The decision to award or deny a reduction for
acceptance of responsibility depends heavily on the facts, and thus we review it for clear
error. United States v. Ali, 619 F.3d 713, 719 (7th Cir. 2010); United States v. Diaz-Gaudarama,
614 F.3d 387, 390 (7th Cir. 2010). Finally, the burden rests with Morales to establish that he
should receive a reduction. United States v. McIntosh, 198 F.3d 995, 999 (7th Cir. 2000).
The district court considered events before the 2006 indictment in determining
whether Morales accepted responsibility, stating that it could not ignore the “history” of
the case and the “total number of years in Mexico.” The court should not be permitted to
consider his flight, Morales argues again in this court, because it preceded the renewed
charges for the drug offense. But Morales overlooks the fact that the renewed drug charges,
and the earlier fraud, bribery, and original drug charges are all part of the same
prosecution. When Morales fled, he did not flee only the fraud and bribery
conviction—based on his plea agreement, he knew that he was also fleeing possible
criminal prosecution for the cocaine offense as well. The fraud, bribery and drug dealing
conduct were all part of the bargain he entered and he had committed to pay the price of a
single period of incarceration for the whole package. A defendant who evades rather than
surrenders to legal custody, as Morales did, continues to break the law and does not
No. 10-3081 Page 5
warrant acceptance-of-responsibility points. See United States v. Etchin, 614 F.3d 726, 740
(7th Cir. 2010) (explaining that the defendant did not deserve points for acceptance of
responsibility on drug charges because he fled from custody on an unrelated charge and
avoided prosecution for months). And Morales does not contest that when he fled he
breached the plea agreement, allowing the government to vacate the agreement and
reinstate the cocaine charge.
Morales responds that the district court could consider only his behavior after 2006
based on cases that prevent courts from looking at misconduct that predates the lodging of
federal charges. See United States v. Wade, 458 F.3d 1273, 1280-81 (11th Cir. 2006); United
States v. McLaughlin, 378 F.3d 35, 41 (1st Cir. 2004). But these cases do not advance his
contention. In Wade, the defendant was arrested for the state crime of possessing a firearm,
released, and then arrested by the state six months later for a second possession. 458 F.3d at
1275. Upon the defendant’s federal convictions for possessing a firearm, the district court
did not award Wade acceptance points, citing the fact that he had continued to engage in
criminal activity after his first state arrest. The Eleventh Circuit reversed, holding that the
district court could not fault the defendant for his actions taken before the federal
indictment. Id. at 1279. It reasoned that “the clock should start to run no later than the time
that the defendant has been put on notice, by the filing of a formal charge, that federal
prosecutors have taken an interest in his conduct.” Id. at 1281 (quoting McLaughlin, 378 F.3d
at 41). Wade thus allows a district court to look at conduct inconsistent with acceptance of
responsibility back to when the defendant was formally notified of federal charges.
Here, Morales was on notice of the federal interest in his cocaine activities long
before 2006 and before he unlawfully fled the United States. He was on notice back in 1995
when federal prosecutors first indicted him on the cocaine charge. Morales responds that
this cocaine charge was later superseded by the fraud and bribery charges. But in
McLaughlin, on which Morales also relies, a superseding information after a federal
indictment did not restrict the district court’s inquiry to the superseding information; the
court could consider any unlawful misconduct throughout the entire prosecution.
See McLaughlin, 378 F.3d at 41 (“entitlement to an acceptance-of-responsibility discount
should not depend upon which charging document was in force when he entered his
plea”). Thus the district court properly considered Morales’s unlawful flight to and time in
Mexico.
Finally, Morales objects to how the district court criticized his extradition challenge.
The district court’s reference to the extradition fight (in the context of Morales’s total time
spent in Mexico) does not undercut our confidence in the district court’s sentencing
decision. Put in context, the reference was likely just a criticism of Morales’s longstanding
No. 10-3081 Page 6
refusal to surrender to the legal process, rather than his use of it after he was arrested. In
fact when Morales emphasized that his lawyers had advised him to challenge the legal
basis for the second extradition, the court acknowledged those concerns and explained
“[w]e are not criticizing the fact that he had a lawyer.” The court’s comments, therefore, do
not undermine the sentencing decision.
Accordingly, we AFFIRM the judgment of the district court.