United States v. Reyes–Medina

• Decision Date: 27 June 2012
• Docket Number: No. 11–3272.,11–3272.
• Citation: 683 F.3d 837
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Juan Martin REYES–MEDINA, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

683 F.3d 837

UNITED STATES of America, Plaintiff–Appellee,

v.Juan Martin REYES–MEDINA, Defendant–Appellant.

No. 11–3272.

United States Court of Appeals, Seventh Circuit.

Argued April 12, 2012.

Decided June 27, 2012.

Steven A. Block (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Adam J. Sheppard (argued), Barry D. Sheppard, Attorneys, Chicago, IL, for Defendant–Appellant.

Before EASTERBROOK, Chief Judge, and MANION and SYKES, Circuit Judges.

MANION, Circuit Judge.

Juan Martin Reyes–Medina pleaded guilty to two counts of knowingly and intentionally using a communication facility in committing, causing, or facilitating a drug trafficking crime in violation of 21 U.S.C. § 843(b). The district court sentenced him to 48 months' imprisonment on Count I, and 39 months on Count II, to run consecutively. Reyes–Medina now appeals, arguing that the district court failed to consider two sentencing factors when it imposed his sentence, and that a consecutive sentence was unreasonable and excessive. We affirm.

I.

Juan Martin Reyes–Medina's two-count information was based on two telephone conversations he had with a cooperating government informant. The first conversation occurred in the evening hours of March 11, 2009. The cooperating informant and Reyes–Medina agreed that they would meet the next day and Reyes–Medina would pay the informant $120,000 in exchange for five kilograms of cocaine. The following morning, Reyes–Medina and the informant spoke again over the telephone, finalizing their plans for the location and time of the exchange. At approximately 4:00 p.m. on March 12, 2009, Reyes–Medina met with the cooperating informant at the agreed-on location; each arrived in separate vehicles. The informant passed a black duffel bag containing sham cocaine to Reyes–Medina, and Reyes–Medina passed a grocery bag filled with $120,000 to the informant. Government agents arrested Reyes–Medina soon thereafter.

After Reyes–Medina was arrested, the agents searched his restaurant and an apartment he maintained on the top floor of his restaurant. The search yielded three firearms, 2.85 kilograms of heroin, 1.7 grams of cocaine, $54,000 in cash, and narcotics-distribution paraphernalia. With this evidence in hand, the government charged Reyes–Medina with three criminal counts: attempting to knowingly and intentionally possess a controlled substance; knowingly and intentionally possessing a controlled substance; and knowingly possessing a firearm in furtherance of a drug trafficking crime.

The district court subsequently suppressed the evidence obtained during the search of Reyes–Medina's restaurant and apartment, so the government issued a superseding information that charged him with only two counts of knowingly and intentionally using a communication facility in committing, causing, or facilitating a drug trafficking crime in violation of 21 U.S.C. § 843(b). Each so-called “telephone count” carried a statutory maximum of 48 months' imprisonment, 21 U.S.C. § 843(d)(1), and the district court calculated a sentencing guidelines range of 87 to 96 months' imprisonment. Reyes–Medina pleaded guilty to the superseding information and asked for concurrent sentences, but, after a thorough sentencing hearing, the district court sentenced him to consecutive terms of imprisonment of 48 months for Count I, and 39 months for Count II. Reyes–Medina appeals, challenging the district court's alleged failure to apply two of the sentencing factors listed in 18 U.S.C. § 3553(a), as well as the court's decision to impose consecutive terms of imprisonment.

II.

We review the district court's sentencing procedure de novo.United States v. Pulley, 601 F.3d 660, 664 (7th Cir.2010) (citing United States v. Smith, 562 F.3d 866, 872 (7th Cir.2009)). “The substantive reasonableness of a sentence is reviewed for an abuse of discretion and a correctly calculated, within-Guidelines sentence is entitled to a presumption of reasonableness.” Id. (citations omitted). Reyes–Medina's arguments attack both the district court's sentencing procedure and the substantive reasonableness of his sentence. We will address each in turn.

A. Sentencing Procedure

We have previously laid out the proper procedure for imposing a sentence. First, the district court considers “the presentence investigation report and its interpretation of the [sentencing] guidelines.” Smith, 562 F.3d at 872 (citing Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). Then, the district court must “subject the defendant's sentence ‘to the thorough adversarial testing contemplated by the federal sentencing procedure.’ ” Id. (quoting Rita, 551 U.S. at 351, 127 S.Ct. 2456). That testing involves considering whether to impose a guidelines sentence in light of the sentencing factors listed in 18 U.S.C. § 3553(a). Id. Specifically, the district court “must allow a defendant to point out any of the § 3553(a) factors that might justify a sentence outside of the guidelines range, and must consider those factors when determining the sentence.” Id. at 873 (citing United States v. Tyra, 454 F.3d 686, 687 (7th Cir.2006)). “The district court need not explicitly discuss all of the factors in § 3553(a), but it must show that it has given meaningful consideration to the factors, and it must articulate the factors that determined its chosen sentence.” Tyra, 454 F.3d at 687–88 (citations omitted).

The only aspect of the sentencing procedure that Reyes–Medina challenges is the district court's purported failure to consider the two sentencing factors found in subsections (a)(5) and (6) of § 3553. At the outset, we note that a sentencing judge may “discuss the application of the statutory factors to the defendant not in checklist fashion but instead in the form of an adequate statement of the judge's reasons, consistent with section 3553(a), for thinking the sentence that he has selected is indeed appropriate for the particular defendant.” United States v. Dean, 414 F.3d 725, 729 (7th Cir.2005) (citations omitted). Here, however, the judge actually did step through each § 3553(a) factor in checklist fashion, articulating each factor's applicability and weight in this particular case. Even so, we are mindful of the fact that “the judge need not ‘write a comprehensive essay applying the full panoply of penological theories and considerations, which is to say everything invoked or evoked by section 3553(a) ..., to the case before him.’ ” Smith, 562 F.3d at 873 (quoting Dean, 414 F.3d at 729). That said, we will analyze both subsections of § 3553(a) that Reyes–Medina claims were given short shrift.

Taking subsection (a)(6) first, this provision states that “[t]he court, in determining the particular sentence to be imposed, shall consider ... the need to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct.” In addressing this factor, the district court judge opined that

[it] has always struck me as being an appeal to subjectivity of a kind that courts should not be utilizing to any extent because what is an unwarranted disparity is sort of like, you know, beauty is in the eye of the beholder. You can rationalize any disparity as being unwarranted, just as you can rationalize the opposite side. And, therefore, that sometimes does play a useful part as, for example, when there are co-defendants involved and you want to make sure their comparative culpability is adequately reflected, but that is not a factor here.

Reyes–Medina highlights the court's use of an example of a case involving co-defendants as evidence that the court did not consider this factor. We recognize that “the kind of ‘disparity’ with which § 3553(a)(6) is concerned is an unjustified difference across judges (or districts) rather than among defendants in a single case.” United States v. Boscarino, 437 F.3d 634, 638 (7th Cir.2006). But here, contrary to Reyes–Medina's assertion, the district court judge never said that the factor only applies to codefendants. Rather, it is clear from the context of his statement that the judge was simply giving an example of an instance when the factor would be especially relevant.

Moreover, if a district court judge “ ‘correctly calculated and carefully reviewed the [g]uidelines range, he necessarily gave weight and consideration to the need to avoid unwarranted disparities.’ A sentence within a [g]uideline range ‘necessarily’ complies with § 3553(a)(6).” United States v. Bartlett, 567 F.3d 901, 908 (7th Cir.2009) (quoting Gall v. United States, 552 U.S. 38, 54, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). Here, there is no dispute that the district court correctly calculated the guideline range or that Reyes–Medina's sentence was within that range. Thus, the district court judge did not need to say a word about § 3553(a)(6)'s application in this case to satisfy the procedural requirement that he give that factor “meaningful consideration.”

Reyes–Medina next complains that the district court judge failed to consider his arguments made under § 3553(a)(5). That subsection requires a sentencing court to consider “any pertinent policy statement ... issued by the Sentencing Commission.” 18 U.S.C. § 3553(a)(5). At the sentencing hearing, the district court judge referred to this provision as “a historical relic because that was applicable only at a time when the [s]entencing [g]uidelines themselves were mandatory and, therefore, when they contain policy statements, they were considered by a different standard. That is no longer true because the whole thing is advisory.” Reyes–Medina cries foul, arguing that, even in the post-United States v. Booker world where the guidelines are advisory, see543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a sentencing court must still give pertinent policy statements “ ‘respectful consideration.’ ” Pepper v. United States, ––– U.S. ––––...