United States v. Vincente Ramirez-Men , 683 F.3d 771 ( 2012 )


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  •                            In the
    United States Court of Appeals
    For the Seventh Circuit
    No. 11-3314
    U NITED S TATES OF A MERICA,
    Plaintiff-Appellee,
    v.
    V INCENTE R AMIREZ-M ENDOZA,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Eastern District of Wisconsin.
    No. 10-Cr-175— Rudolph T. Randa, Judge.
    A RGUED M ARCH 29, 2012—D ECIDED JUNE 8, 2012
    Before K ANNE, R OVNER, and W ILLIAMS, Circuit Judges.
    K ANNE, Circuit Judge. Facing charges of conspiracy
    to kidnap, unlawful possession of a firearm in further-
    ance of a crime of violence, and conspiracy to distribute
    marijuana, Vincente Ramirez-Mendoza agreed to plead
    guilty solely to the marijuana-conspiracy charge. The
    district court sentenced Ramirez-Mendoza to 144 months’
    imprisonment. Ramirez-M endoza now challenges
    that sentence in part by arguing that the district
    2                                                No. 11-3314
    court insufficiently considered non-frivolous arguments
    in mitigation. We agree and thus, remand for resentencing.
    I. BACKGROUND
    Vincente Ramirez-Mendoza was part of a large-scale
    drug trafficking organization that distributed marijuana
    in and around Chicago and Milwaukee. In April or May
    2010, Roberto Vizcaino-Ortiz, a social acquaintance
    of Ramirez-Mendoza, introduced him to Hector Vizcaino-
    Ortiz, Roberto’s brother. Shortly after their initial meeting,
    Ramirez-Mendoza agreed to act as a middleman
    for marijuana transactions between Hector and Jose
    Rodriguez, a marijuana supplier. That is, Ramirez-
    Mendoza arranged for Hector to purchase marijuana
    from Rodriguez on consignment for which Ramirez-
    Mendoza was paid a token commission. This arrangement
    continued until approximately August 2010, when Hector
    stopped paying Rodriguez for previously purchased
    marijuana. That missed payment amounted to somewhere
    between $30,000 (Ramirez-Mendoza’s estimate) and
    $75,000 (the presentence report’s (PSR) estimate).
    Predictably, Rodriguez demanded payment, and accord-
    ing to Ramirez-Mendoza, Rodriguez pressured him
    to collect from Hector. When Ramirez-Mendoza’s calls
    to Hector went unanswered, Rodriguez apparently sug-
    gested that Ramirez-Mendoza call Roberto to demand
    payment on Hector’s debt. Roberto answered Ramirez-
    Mendoza’s calls but refused or was unable to bail out
    his brother. Undeterred, Ramirez-Mendoza and perhaps
    one or more associates visited Roberto at work four or
    No. 11-3314                                             3
    five times in hopes of tracking down Hector. Through
    this all, Ramirez-Mendoza maintains that he only called
    on Hector and Roberto because Rodriguez threatened
    injury to Ramirez-Mendoza’s family if he failed to
    help Rodriguez secure payment.
    Rodriguez’s demands for payment came to a head
    on August 27, 2010. That morning, two men assaulted
    Roberto in Milwaukee, dragged him into a van, and
    eventually transported him to a house on South Sacra-
    mento Avenue in Chicago where he was bound to a
    chair with duct tape and flex-cuffs. Roberto reported that
    the kidnappers carried firearms during the ordeal
    and shocked him with an electric cattle prod. Roberto’s
    captors also forced him to make phone calls to family
    members seeking the money his brother Hector owed
    Rodriguez. Fortunately, Roberto escaped the next day.
    A subsequent search of the Sacramento Avenue house
    revealed a pair of boots, later identified as Roberto’s,
    which were duct taped to the legs of a chair found in
    the basement.
    Although it is undisputed that Ramirez-Mendoza joined
    the kidnappers on August 27, the government and
    Ramirez-Mendoza disagree about his role in Roberto’s
    kidnapping. Ramirez-Mendoza principally contends
    that he was also held captive and tortured at the same
    time as Roberto. To bolster his claim, Ramirez-Mendoza
    points to a second chair found in the Sacramento Avenue
    house that also contained remnants of duct tape— evidence
    that supposedly proves that Ramirez-Mendoza was
    forcibly restrained. Ramirez-Mendoza claims that his
    4                                             No. 11-3314
    cousin eventually freed him. The government, of course,
    disputes Ramirez-Mendoza’s story and claims instead
    that Ramirez-Mendoza played a role in the kidnapping.
    As evidence, the government collected cell-phone tower
    data, which shows that Ramirez-Mendoza’s phone — and
    presumably Ramirez-Mendoza himself— traveled from
    Chicago to Milwaukee on the morning of August 27,
    and then back to Chicago (near the Sacramento Avenue
    house) from Milwaukee later that same day. This itinerary
    is consistent with the theory that Ramriez-Mendoza
    traveled to Milwaukee to kidnap Roberto, and then
    drove back to Chicago where Roberto was held captive.
    And perhaps most importantly, the government points
    out that Ramirez-Mendoza continued to lean on Roberto
    and Roberto’s relatives for payment even after Roberto
    escaped.
    During the subsequent investigation, detectives re-
    quested that Roberto place a recorded phone call to
    Ramirez-Mendoza. Roberto asked Ramirez-Mendoza to
    leave him alone and that it was not his obligation to pay
    his brother’s debts. Ramirez-Mendoza responded that
    “it’s not my doing” and “[i]t’s not coming from me
    brother . . . you know what they did to me.” Ramirez-
    Mendoza was arrested on September 8, 2010, for his role
    in Roberto’s kidnapping and the Rodriguez marijuana-
    distribution conspiracy.
    On April 12, 2011, the government filed a second super-
    seding indictment charging Ramirez-Mendoza with: (1)
    conspiracy to commit kidnapping, in violation of 
    18 U.S.C. § 1201
    (a); (2) possession of a firearm in furtherance of
    No. 11-3314                                                5
    a crime of violence, in violation of 
    18 U.S.C. § 924
    (c)(1)(A)(i); and (3) conspiracy to distribute 100
    kilograms or more of marijuana, in violation of 
    21 U.S.C. §§ 846
     and 841(b)(1)(B). On June 23, Ramirez-Mendoza
    pled guilty to count three, the drug-conspiracy charge.
    An attachment (Attachment A) to the written plea agree-
    ment served as the factual basis for the plea. Attachment
    A provides, in part, that large-scale drug trafficking
    organizations — such as the organization to which Ramirez-
    Mendoza belonged — often use violence against those
    who fail to pay drug debts or as a means to other-
    wise maintain control over the organization. At the sen-
    tencing hearing, Ramirez-Mendoza’s counsel timely
    objected to this portion of Attachment A by saying
    that Ramirez-Mendoza “did not necessarily know some
    of those facts” — meaning that Ramirez-Mendoza was
    unaware that violence could be used in connection with
    the conspiracy.
    For the quantity of marijuana at issue, the PSR initially
    calculated Ramirez-Mendoza’s base-level offense as
    26. From there, the PSR recommended a two-level enhance-
    ment for possession of a firearm, see U.S.S.G. § 2D1.1(b)(1),
    a two-level enhancement for use of violence, see U.S.S.G.
    § 2D1.1(b)(2), and a three-level adjustment for acceptance
    of responsibility, see U.S.S.G. § 3E1.1(a)-(b). Thus, the PSR
    recommended a sentencing range of 70 to 87 months’
    imprisonment based on a total criminal offense level of
    27 and a Category I criminal history. Notably, the district
    court accepted the PSR’s recommendation, over the govern-
    ment’s objection, against applying a two-level enhance-
    ment under U.S.S.G. § 2D1.1(b)(12) for maintaining
    6                                               No. 11-3314
    a premises for manufacturing or storing marijuana.
    The district court ultimately departed from the guide-
    lines range and imposed a sentence of 144 months’ impris-
    onment.
    II. ANALYSIS
    We review Ramirez-Mendoza’s sentence for reasonable-
    ness under an abuse of discretion standard. United
    States v. England, 
    604 F.3d 460
    , 464 (7th Cir. 2010).
    First, we determine whether the sentencing court commit-
    ted procedural error — such errors include, for example,
    an improperly calculated guidelines range or the failure
    to consider the 
    18 U.S.C. § 3553
    (a) factors. United
    States v. Scott, 
    555 F.3d 605
    , 608 (7th Cir. 2009). If there
    was no procedural error, we then review the sentence
    for substantive reasonableness. 
    Id.
    On appeal, Ramirez-Mendoza contends that the district
    court committed three errors in rendering an above-
    guidelines sentence, although we have grouped the
    first two for ease of analysis. First, Ramirez-Mendoza
    argues that the sentencing court failed to adequately
    address two of his arguments: (1) whether Ramirez-
    Mendoza was coerced into participating in the kid-
    napping; and (2) whether Roberto’s kidnapping
    was foreseeable. Second, Ramirez-Mendoza argues
    that the length of his sentence was substantively unreason-
    able.
    No. 11-3314                                                7
    A. Procedural Error
    We begin with the oft-cited principle that the sentenc-
    ing court “must adequately explain the chosen sentence
    to allow for meaningful appellate review and to promote
    the perception of fair sentencing.” Gall v. United States,
    
    552 U.S. 38
    , 50 (2007); see also United States v. Garcia-
    Oliveros, 
    639 F.3d 380
    , 381 (7th Cir. 2011) (per curiam);
    (“A sentencing court commits procedural error by not
    adequately explaining its choice of sentence.”). But
    in applying Gall, we have carefully noted that a sentenc-
    ing judge “need not belabor the obvious,” United States
    v. Gary, 
    613 F.3d 706
    , 709 (7th Cir. 2010), nor must the
    sentencing judge always address “stock” arguments
    made in mitigation, United States v. Tahzib, 
    513 F.3d 692
    , 695 (7th Cir. 2008); Gary, 
    613 F.3d at 709
     (“ ‘[S]tock’
    arguments in mitigation often can be rejected with little
    or even no explanation.”). “Stock” arguments have
    been previously defined as near-meritless arguments
    that a sentencing court frequently encounters. See, e.g.,
    United States v. Mendoza, 
    576 F.3d 711
    , 722 (7th Cir. 2009);
    Tahzib, 
    513 F.3d at 695
    .
    With that, we turn to the question of whether the district
    court adequately addressed two of Ramirez-Mendoza’s
    principal arguments. First, Ramirez-Mendoza argues
    that the district court ignored his claim that he was coerced
    into participating in the kidnapping, and thus, whether
    he was entitled to a reduction to his calculated criminal
    offense level. See U.S.S.G. § 5K2.12 (“If the defendant
    committed the offense because of serious coercion, black-
    mail or duress, under circumstances not amounting to
    8                                                 No. 11-3314
    a complete defense, the court may depart downward.”).
    We agree. In his sentencing memorandum, Ramirez-
    Mendoza offered evidence suggesting that he was
    also kidnapped or, at a minimum, subjected to signifi-
    cant pressure to collect Hector’s debt. For example,
    Ramirez-Mendoza claims that Rodriguez threatened
    harm to Ramirez-Mendoza’s family if he did not
    help collect the debt. Ramirez-Mendoza also points to
    his statement during the recorded phone call with
    Roberto— “[i]t’s not coming from me brother . . . you know
    what they did to me” — which could be evidence of coer-
    cion. There is also the matter of the duct tape found on
    a second chair in the South Sacramento house and
    the simple fact that Ramirez-Mendoza consistently
    and forcefully called on Roberto to answer for the
    debt, even though Ramirez-Mendoza and Roberto
    were social acquaintances. All this is to say that Ramirez-
    Mendoza’s coercion argument is more than a mere
    stock argument. Accordingly, the district court should
    have addressed it at the sentencing hearing.
    The government concedes that the district court never
    expressly addressed Ramirez-Mendoza’s coercion argu-
    ment; rather, the government contends that the district
    court implicitly rejected the argument by calling
    into question Ramirez-Mendoza’s credibility — but in a
    different context. The district court’s intimation without
    confronting the coercion argument head-on is simply
    not enough for non-frivolous arguments. See United States
    v. Schroeder, 
    536 F.3d 746
    , 756 (7th Cir. 2008). Alternatively,
    the government suggests that any error by the
    district court is harmless. See United States v. Acosta,
    No. 11-3314                                               9
    
    474 F.3d 999
    , 1004 (7th Cir. 2007). Acosta is inapposite.
    There, we noted that the defendant’s coercion argument
    was meritless, entirely premised on the defendant’s self-
    serving testimony, and not even a principal focus at
    her sentencing hearing. 
    Id.
     The exact opposite is true
    of Ramirez-Mendoza’s argument. Additionally, harmless
    error plays a role in sentencing when a district court
    does not discuss an immaterial sentencing argument. 
    Id.
    at 1003 (citing United States v. Cunningham, 
    429 F.3d 673
    ,
    678 (7th Cir. 2005)). As discussed, Ramirez-Mendoza’s
    argument is not frivolous, and thus, it cannot be swept
    away through harmless error.
    Ultimately, the government may dispute the relevance or
    truth of the coercion evidence, and the government
    might be correct in arguing that Ramirez-Mendoza created
    this coercion story out of whole cloth. We take no view
    on the veracity of Ramirez-Mendoza’s theory, except to
    say that it was a principal argument worthy of the district
    court’s attention. See Cunningham, 
    429 F.3d at 679
     (“A judge
    who fails to mention a ground of recognized legal
    merit (provided it has a factual basis) is likely to have
    committed an error or oversight.”). This argument
    was neither meritless nor one frequently encountered
    by sentencing courts. It deserved the attention of
    the district court.
    Ramirez-Mendoza also claims that the district court
    failed to adequately consider whether his co-conspirators’
    actions should be charged to him as relevant conduct.
    See U.S.S.G. § 1B1.3(a)(1)(B) (Generally, a defendant can
    be held liable for “all reasonably foreseeable acts and
    10                                                 No. 11-3314
    omissions of others in furtherance of the jointly under-
    taken criminal activity . . . .”). Here, the district court
    enhanced Ram irez-M endoza’s sentence because
    the kidnapping and use of firearms by his co-conspirators
    was reasonably foreseeable to him, and thus, relevant
    for purposes of crafting his sentence. But, Ramirez-
    Mendoza faults the district court for improperly relying
    on disputed evidence. Specifically, Ramirez-Mendoza
    highlights his objection to one paragraph of Attachment
    A to the plea agreement, which indicated that Ramirez-
    Mendoza was aware of the violence drug trafficking
    organizations typically use to collect drug debts.
    On appeal, Ramirez-Mendoza claims that the
    district court improperly relied upon the objected-to
    paragraph in Attachment A in holding that his co-conspira-
    tors’ violent acts were foreseeable. Assuming this is
    true, Ramirez-Mendoza argues that the district court
    never sufficiently explained why his co-conspirators’
    violence should be charged to him as relevant conduct.
    We generally agree with Ramirez-Mendoza that the district
    cou rt improperly mentioned his “adm issions,”
    which presumably is a reference to the objected-to para-
    graph in Attachment A. But, the district court also
    made an explicit credibility finding on the foreseeability
    issue. Specifically, the district court said: “A disassocia-
    tion by the defense to these [foreseeability] facts is not
    believable . . . given the physical evidence that . . . con-
    nect[s] the Defendant to these events. And I’m referring
    to the cell phones and other facts that make those argu-
    ments relative to disassociation implausible . . . .” (Sent. Tr.
    at 53.) Such a credibility finding is exactly the type of find-
    No. 11-3314                                                      11
    ing necessary for a district court to have sufficiently
    considered a defendant’s sentencing argument. Although
    the district court should have avoided referring to
    a contested admission, we are satisfied that its brief
    credibility determination adequately explains the
    decision to reject Ramirez-Mendoza’s foreseeability
    argument. See United States v. Williams, 
    616 F.3d 685
    ,
    694 (7th Cir. 2010) (“Because this explanation demon-
    strated the court’s basis for its reasons, it matters little
    that the explanation was brief.”); Schroeder, 
    536 F.3d at 755
    (“A short explanation will suffice where the context
    and record make clear the reasoning underlying the district
    court’s conclusion.”).1
    B. Substantive Reasonableness
    Because the district court did not address one meritori-
    ous argument offered in mitigation, we need not consider
    whether Ramirez-Mendoza’s sentence was substantively
    1
    We are skeptical that Ramirez-Mendoza’s foreseeability
    argument is worthy of the district court’s attention—that is,
    whether it is something other than a stock argument. Anyone
    who so much as opens a newspaper must know that large-scale
    drug conspiracies use violence to maintain territory, ensure
    payment, and enforce organizational structure. Surely Ramirez-
    Mendoza had some inkling that Rodriguez would resort to
    violence if a customer failed to pay a $30,000 or $75,000 debt.
    That said, we assume without deciding that this is a meritorious
    claim and instead find that the district court’s credibility finding
    sufficiently explains its choice of sentence.
    12                                             No. 11-3314
    unreasonable. See Cunningham, 
    429 F.3d at 680
    . But, we
    take this opportunity to stress that sentencing judges
    rightly maintain significant discretion in fashioning an
    appropriate sentence. It is the sentencing judge that
    hears evidence and makes credibility determinations, both
    of which give the judge insights into a case that a
    cold record simply cannot convey. Gall, 
    552 U.S. at 51-52
    .
    Ultimately, given the seriousness and viciousness of
    the alleged kidnapping, a 144-month sentence may
    be reasonable, and the sentencing judge is free to reimpose
    that sentence after adequately considering Ramirez-
    Mendoza’s coercion argument.
    III. CONCLUSION
    For the foregoing reasons, we V ACATE Ramirez-
    Mendoza’s sentence and R EMAND to the district court for
    resentencing.
    6-8-12