U.S. v. Santiago

• Decision Date: 02 August 2007
• Docket Number: No. 06-3193.,06-3193.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alejandro SANTIAGO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

495 F.3d 820

UNITED STATES of America, Plaintiff-Appellee, v. Alejandro SANTIAGO, Defendant-Appellant.

No. 06-3193.

United States Court of Appeals, Seventh Circuit.

Argued May 1, 2007.

Decided August 2, 2007.

Amarjeet Singh Bhachu (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Kent R. Carlson (argued), Carlson & Associates, Chicago, IL, for Defendant-Appellant.

Before RIPPLE, MANION and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.

The defendant, Alejandro Santiago, was indicted on one count of possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), and unlawful possession of ammunition by a felon, in violation of 18 U.S.C. § 922(g). Mr. Santiago pleaded guilty and was sentenced to 360 months' imprisonment, based in part on the district court's finding that Mr. Santiago had been involved in other uncharged conduct. Mr. Santiago now appeals that portion of his sentence attributable to the uncharged conduct. For the reasons set forth in this opinion, we affirm the judgment of the district court.

I BACKGROUND

Mr. Santiago was charged with possession of cocaine base, which he conceded was crack cocaine, with intent to distribute and with unlawful possession of ammunition by a felon. Mr. Santiago pleaded guilty to the offenses. The presentence investigation report ("PSR") calculated Mr. Santiago's total offense level at 32 and his criminal history category at V. This resulted in an advisory guidelines range of 188-235 months' imprisonment. However, the guidelines provide that, when the statutory mandatory minimum sentence is greater than the advisory guidelines range, the statutory mandatory minimum becomes the guidelines sentence. See U.S.S.G. § 5G1.1(b). Based on Mr. Santiago's prior convictions and the quantity of cocaine base involved, the statutory mandatory minimum sentence was 240 months' imprisonment. See 21 U.S.C. § 841(b)(1)(A). Therefore, as calculated in the PSR, Mr. Santiago's advisory guidelines sentence was 240 months' imprisonment.

The Government requested that the court increase Mr. Santiago's total offense level to 37, which would result in an advisory guidelines range of 324-405 months' imprisonment, and recommended a sentence at the top of that range. The Government submitted that this increase was appropriate because Mr. Santiago's criminal history category did not reflect adequately his prior criminal conduct. The Government first pointed to Mr. Santiago's 1983 conviction in Illinois state court for conspiracy to commit murder. This conviction was not reflected in Mr. Santiago's criminal history category because his sentence was completed outside of the fifteen-year limit for calculating his criminal history category under the advisory guidelines. The Government further contended that an increase in Mr. Santiago's offense level was warranted because of his participation in the kidnap and murder of a man named Jesus Colon. The Government alleged that, after a co-conspirator in the kidnapping, Francis Bell, was apprehended while attempting to collect the ransom demanded from Colon's family, Mr. Santiago and two other co-conspirators, Victor Lopez and Jose Perez, killed Colon in a particularly gruesome manner and dismembered his body. Mr. Santiago had not been charged with, or convicted of, any offense related to these events.

The Government produced no live witnesses at sentencing. To support its allegations that Mr. Santiago had been involved in the kidnap and murder, the Government presented: video confessions given by Lopez and Perez to the Illinois state prosecutor implicating Mr. Santiago in Colon's murder; transcripts of sworn statements by Simitrio Sanchez and Pablo Morales, two other co-conspirators in the kidnap of Colon, that corroborated the confessions of Lopez and Perez; transcripts of sworn statements by Agents Henry Harris and William Warren of the Drug Enforcement Agency, both of whom had investigated the kidnap and murder of Colon; and phone records between the co-conspirators on the day Bell was arrested. Additionally, the Government introduced a letter written by Mr. Santiago to his brother while Mr. Santiago was being held at the Metropolitan Correctional Center following his arrest on the present charges. The letter discussed his concern upon learning the news that Lopez and Perez had been arrested in connection with Colon's murder. In the letter, Mr. Santiago expressed that he likely would be implicated in the murder by Lopez and Perez, but that he was forming a plan to place the blame on himself, Lopez and Perez in order to save his brother from liability.

Mr. Santiago raised numerous objections at sentencing, including his contention that any reliance on the out of court statements by Lopez, Perez and the others would violate his Sixth Amendment rights under the Confrontation Clause. He further submitted that, because the uncharged conduct would result in a significant increase in his sentence, the court was required to find any facts related to the uncharged conduct beyond a reasonable doubt.

The district court overruled Mr. Santiago's objections. It then found that Mr. Santiago had participated in the murder of Colon. The court noted that the confessions of Lopez and Perez alone likely would not support such a finding by a preponderance of the evidence. However, based on Mr. Santiago's letter to his brother, the court found beyond a reasonable doubt that Mr. Santiago had participated in the murder. Rather than apply these facts to increase Mr. Santiago's offense level under the advisory guidelines,¹ as the Government had requested, the court accounted for these facts as it evaluated Mr. Santiago's sentence in light of the statutory sentencing factors in 18 U.S.C. § 3553(a).² The court found the uncharged conduct relevant to evaluating Mr Santiago's history and characteristics, the need to promote respect for the law and to provide an adequate deterrent, and to protect the public from Mr. Santiago. In light of these considerations, the court concluded that a sentence of 360 months' imprisonment was sufficient but not greater than necessary to fulfill the purposes of § 3553(a).

II DISCUSSION

Mr. Santiago now appeals his sentence. He first raises a number of constitutional challenges to the procedure employed by the district court in determining his sentence. Mr. Santiago contends that under the Sixth Amendment, as interpreted in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), any fact that increased his sentence had to be found beyond a reasonable doubt by a jury. Next, Mr. Santiago asserts that, under the Due Process Clause of the Fifth Amendment, the court was required to find beyond a reasonable doubt that he had participated in the murder of Colon because these findings had resulted in a considerable increase in his sentence. Lastly, Mr. Santiago submits that the district court violated his Sixth Amendment right to confrontation under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), when it considered statements by Lopez and Perez without affording Mr. Santiago the opportunity to cross-examine them. We previously have considered and rejected each of these contentions. See United States v. White, 472 F.3d 458, 464 (7th Cir.2006) (holding that Booker does not require facts found at sentencing to be found by a jury beyond a reasonable doubt as long as the factual findings do not increase the defendant's sentence beyond the statutory maximum for the offense of conviction);³ United States v. Reuter, 463 F.3d 792, 793 (7th Cir.2006) (holding that facts leading to large increases in a sentence only need be found by a preponderance of the evidence);⁴ United States v. Miller, 450 F.3d 270, 273 (7th Cir.2006) (holding that neither Crawford nor the combination of Crawford and Booker extend the defendant's rights under the Confrontation Clause to sentencing proceedings).

Mr. Santiago next asserts that the evidence was insufficient to support the district court's finding that he had participated in the murder of Colon. We review the district court's factual determinations with respect to sentencing for clear error. United States v. Cross, 430 F.3d 406, 410 (7th Cir.2005). Further, due process requires that the district court's findings be based on reliable evidence. Id. Evidence will satisfy this requirement if it "bear[s] sufficient indicia of reliability to support [its] probable accuracy." Id. (citing United States v. Lanterman, 76 F.3d 158, 161 (7th Cir.1996)) (alterations in original).

Mr. Santiago asserts that statements by Lopez and Perez were unreliable. He points out that the district court noted that it believed Lopez and Perez had been coached in their statements and probably had rehearsed the statements before they were filmed. "[A] `very strong presumption of unreliability' attaches to statements that are: (1) given with government involvement; (2) describe past events; and (3) have not been subjected to adversarial testing." United States v. Jones, 371 F.3d 363, 369 (7th Cir.2004) (quoting United States v. Ochoa, 229 F.3d 631, 637 (7th Cir.2000)). The district court was mindful of these principles and noted that it "would be reluctant to conclude" by a preponderance of the evidence that Mr. Santiago had participated in the kidnap and murder of Colon based solely on these statements. R.81 at 50.

However, the district court then concluded that Mr. Santiago's letter to his brother was "tantamount to a confession" by Mr. Santiago. Id. at 51. The court held that the letter was sufficient by itself to establish beyond a reasonable doubt Mr. Santiago's involvement in the murder of Colon. The court noted that Mr. Santiago discussed in the letter his plan to place the blame on himself, Lopez and Perez and that he anticipated that they all...