683 F.3d 771 (7th Cir. 2012), 11-3314, United States v. Ramirez-Mendoza

Docket Nº:11-3314.
Citation:683 F.3d 771
Opinion Judge:KANNE, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Vincente RAMIREZ-MENDOZA, Defendant-Appellant.
Attorney:Jonathan H. Koenig (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee. Richard L. Kaiser (argued), Law Offices of Richard L. Kaiser, South Milwaukee, WI, for Defendant-Appellant.
Judge Panel:Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.
Case Date:June 08, 2012
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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683 F.3d 771 (7th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

Vincente RAMIREZ-MENDOZA, Defendant-Appellant.

No. 11-3314.

United States Court of Appeals, Seventh Circuit.

June 8, 2012

         Argued March 29, 2012.

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          Jonathan H. Koenig (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

          Richard L. Kaiser (argued), Law Offices of Richard L. Kaiser, South Milwaukee, WI, for Defendant-Appellant.

          Before KANNE, ROVNER, and WILLIAMS, Circuit Judges.

          KANNE, Circuit Judge.

          Facing charges of conspiracy to kidnap, unlawful possession of a firearm in furtherance of a crime of violence, and conspiracy to distribute marijuana, Vincente Ramirez-Mendoza agreed to plead guilty

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solely to the marijuana-conspiracy charge. The district court sentenced Ramirez-Mendoza to 144 months' imprisonment. Ramirez-Mendoza now challenges that sentence in part by arguing that the district 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 according to Ramirez-Mendoza, Rodriguez pressured him to collect from Hector. When Ramirez-Mendoza's calls to Hector went unanswered, Rodriguez apparently suggested 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 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 Sacramento 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 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

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back to Chicago (near the Sacramento Avenue house) from Milwaukee later that same day. This itinerary is consistent with the theory that Ramirez-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 requested that Roberto place a recorded phone call...

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