United States v. Vizcarra

Decision Date07 February 2012
Docket NumberNos. 09–1174,09–2457.,s. 09–1174
Citation668 F.3d 516
PartiesUNITED STATES of America, Plaintiff–Appellee, v. David VIZCARRA and Rogelio Aguirre, Defendants–Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

OPINION TEXT STARTS HERE

Shoba Pilay (argued), Attorney, Office of the United States Attorney, Chicago, IL, for PlaintiffAppellee.

Steven Saltzman (argued), Attorney, Chicago, IL, for DefendantAppellant in No. 09–1174.

Jonathan E. Hawley, Federal Public Defender, Office of the Federal Public Defender, Peoria, IL, A. Brian Threlkeld, Attorney, Office of the Federal Public Defender, Urbana, IL, for DefendantAppellant in No. 09–2457.

Before POSNER, KANNE, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

David Vizcarra and Rogelio Aguirre committed a kidnapping for ransom to extract payment of a drug debt, abducting the victim in Indiana, taking her to Illinois, and holding her for two days before federal agents rescued her. Along with two other co-conspirators, they were indicted on conspiracy and kidnapping charges. They pleaded guilty to the kidnapping count, and each appealed. Vizcarra argues that the district court miscalculated his guidelines sentencing range by applying a six-level enhancement under U.S.S.G. § 2A4.1(b)(1) for kidnapping demanding a ransom. Applying the enhancement, he contends, was impermissible double counting because the underlying offense involved a ransom demand. He also claims the judge failed to adequately address his arguments in mitigation and that his 168–month sentence is unreasonable in light of those mitigating facts. Aguirre's counsel filed an Anders brief seeking permission to withdraw after finding no nonfrivolous issues for appeal.

We affirm Vizcarra's sentence. Applying the enhancement for demanding a ransom does not impermissibly double count. In so holding we resolve an inconsistency in our caselaw regarding the concept of double counting. Despite what we have said or implied—most recently in United States v. Bell, 598 F.3d 366, 371–73 (7th Cir.2010)—there is no general prohibition against double counting in the guidelines. To the contrary, the default rule is that the same conduct may determine the base offense level and also trigger the cumulative application of enhancements and adjustments unless a specific guideline instructs otherwise. See U.S.S.G. § 1B1.1 cmt. n. 4. In other words, double counting is impermissible only when the text of the applicable guideline specifically says so. We reject Vizcarra's remaining sentencing arguments. Finally, we agree with Aguirre's counsel that there are no nonfrivolous issues for appeal and therefore grant counsel's motion to withdraw and dismiss Aguirre's appeal.

I. Background

Rogelio Aguirre fronted a significant quantity of marijuana to a woman identified in the briefs as “Victim A.” When she failed to pay for the marijuana, Aguirre devised a plot to kidnap and hold her for ransom to pay off the debt. He recruited Antonio Vasquez to help with the kidnapping, and Vasquez, in turn, recruited Jacinto and David Vizcarra (father and son). A fifth unnamed co-conspirator arranged to meet Victim A at a tollway plaza in Indiana. Vasquez and the Vizcarras drove to the plaza with the unnamed co-conspirator. The co-conspirator approached the victim, and David Vizcarra and Vasquez forced her into Jacinto Vizcarra's van. The Vizcarras drove Victim A to Aguirre's apartment in Illinois, and Aguirre told Vasquez to call her family and demand a ransom. Vasquez thereafter made several ransom calls. The kidnappers held Victim A for two days, threatening her and her family. Federal agents eventually rescued her. Aguirre, Vasquez, and the Vizcarras were indicted for conspiracy to commit kidnapping, 18 U.S.C. § 1201(c), and kidnapping, 18 U.S.C. § 1201(a)(1)-(2). Aguirre and David Vizcarra pleaded guilty to the kidnapping charge.

At sentencing Vizcarra objected to the recommendation in the presentence report (“PSR”) that a six-level enhancement should be applied under U.S.S.G. § 2A4.1(b)(1) for kidnapping demanding a ransom. He also argued that the PSR's recommendation of criminal-history category II overstated his criminal record. The district court agreed that category II overrepresented Vizcarra's criminal history, which was limited to two drunk-driving convictions, but rejected his challenge to the ransom enhancement. These rulings resulted in an offense level of 35, a criminal-history category I, and a guidelines range of 168 to 210 months.

Vizcarra argued for a below-guidelines sentence, presenting several arguments in mitigation. He pointed out that he did not plan the kidnapping and he cooperated with police soon after he was arrested. He argued that his participation in the crime was an aberration based on his limited criminal history and other aspects of his background. He also maintained that a lengthy prison term was unnecessary as a specific deterrent; because his criminal record was insignificant—he had spent only one day in jail prior to the kidnapping—a shorter prison term would have a comparatively strong deterrent effect on him. Finally, he argued that his drug and alcohol problems influenced his participation in the crime.

The court imposed a sentence of 168 months, the low end of the guidelines range. Vizcarra appealed, challenging his sentence on procedural and substantive grounds. In particular, he contests the district court's application of the six-level enhancement under § 2A4.1(b)(1) for kidnapping demanding a ransom.

Aguirre's PSR recommended a guidelines range of 235 to 293 months. Aguirre agreed with the guidelines calculation but argued for a below-guidelines sentence based on his age (then 56) and poor health. The judge sentenced Aguirre to 235 months, the low end of the guidelines range, and Aguirre appealed. His appointed counsel filed an Anders brief and moved to withdraw after concluding that there are no nonfrivolous issues for appeal. Aguirre did not initially respond, but we later granted his request to file a late response.

II. Discussion
A. David Vizcarra's Appeal

Vizcarra raises three issues on appeal, all relating to his sentence. The main event is an argument about double counting: He contends that applying the six-level enhancement for kidnapping demanding a ransom under § 2A4.1(b)(1) is impermissible double counting because demanding a ransom was an element of his kidnapping conviction. He also argues that the judge ignored several of his arguments in mitigation and that his sentence is substantively unreasonable.

1. Double Counting

In the context of guidelines sentencing, the term “double counting” refers to using the same conduct more than once to increase a defendant's guidelines sentencing range. Claims of impermissible double counting come in two varieties. First, conduct that forms the factual basis for an element of the offense might also support a guidelines enhancement or adjustment, meaning that the conduct is counted once as part of the base offense and a second time through the application of an enhancement or adjustment. Second, particular conduct might support the application of more than one enhancement or adjustment. Our cases are inconsistent about whether double counting is generally permissible or impermissible. The government asks us to resolve the inconsistency, and we accept the invitation. We hold that double counting is generally permissible unless the text of the guidelines expressly prohibits it. This holding overrules Bell, 598 F.3d at 371–73, so we have circulated this opinion to the full court under Circuit Rule 40(e). No judge in active service requested to hear the case en banc.

“Double counting in the sentencing context ‘is a phenomenon that is less sinister than the name implies.’ United States v. Lilly, 13 F.3d 15, 19 (1st Cir.1994) (quoting United States v. Zapata, 1 F.3d 46, 47 (1st Cir.1993)). Double counting raises no constitutional concerns. See United States v. Wheeler, 330 F.3d 407, 413 (6th Cir.2003). The concept of double counting is strictly a matter of guidelines interpretation, so normal rules of statutory construction apply. See United States v. Mitchell, 353 F.3d 552, 556 (7th Cir.2003) (“When construing federal sentencing guidelines, we turn to the general rules of statutory construction.” (citing United States v. Lewis, 93 F.3d 1075, 1080 (2d Cir.1996))). The starting place is the text of the guidelines. United States v. Hill, 645 F.3d 900, 907 (7th Cir.2011) ([W]e ‘begin with the text of the provision and the plain meaning of the words in the text.’ (quoting United States v. Arnaout, 431 F.3d 994, 1001 (7th Cir.2005))). In addition, ‘commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.’ United States v. Krumwiede, 599 F.3d 785, 790 n. 8 (7th Cir.2010) (quoting Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993)).

Section 1B1.1 explains the general principles for applying the guidelines, instructing sentencing courts to apply the guidelines' various rules in order, “except as specifically directed.” U.S.S.G. § 1B1.1(a). To arrive at a sentencing range, the judge undertakes several sequential intermediate steps to calculate the applicable range, including selecting the proper offense guideline, determining a base offense level, applying enhancements under Chapter Two and adjustments under Chapter Three, and determining a criminal-history category. Id. The defendant's advisory sentencing range is based on the adjusted offense level and criminal-history category. Id. All this is familiar and well understood.

A structural feature of guidelines sentencing is that distinct aspects of a defendant's conduct will support respective increases in punishment through multiple sentencing enhancements, adjustments, or other...

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