710 F.3d 724 (7th Cir. 2013), 11-3529, United States v. Sanchez

Docket Nº:11-3529.
Citation:710 F.3d 724
Opinion Judge:KANNE, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Edwin SANCHEZ, Defendant-Appellant.
Attorney:Michelle Marie Petersen, Department of Justice, Washington, DC, for Plaintiff-Appellee. Joshua Sachs, Evanston, IL, for Defendant-Appellant.
Judge Panel:Before KANNE, TINDER, and HAMILTON, Circuit Judges.
Case Date:March 06, 2013
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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710 F.3d 724 (7th Cir. 2013)

UNITED STATES of America, Plaintiff-Appellee,

v.

Edwin SANCHEZ, Defendant-Appellant.

No. 11-3529.

United States Court of Appeals, Seventh Circuit.

March 6, 2013

Argued Sept. 25, 2012.

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Michelle Marie Petersen, Department of Justice, Washington, DC, for Plaintiff-Appellee.

Joshua Sachs, Evanston, IL, for Defendant-Appellant.

Before KANNE, TINDER, and HAMILTON, Circuit Judges.

KANNE, Circuit Judge.

After pleading guilty to participating in a conspiracy to distribute cocaine, Edwin Sanchez was sentenced to 262 months of incarceration and five years of supervised release. His punishment took into account a new sentencing enhancement for a defendant who " maintained a premises for the purpose of manufacturing or distributing a controlled substance." U.S.S.G. § 2D1.1(b)(12). Sanchez now appeals his sentence. He contends that applying the enhancement to him violated the ex post facto clause of the Constitution or was otherwise an incorrect application of the law. He also challenges his sentence on various procedural and substantive grounds. We do not find any error, however, and therefore affirm Sanchez's sentence.

I. BACKGROUND

In mid-2007, Edwin Sanchez began participating in a large drug conspiracy. He linked up with Carlos Gascar-Corona, a drug distributor with ties to the Mexican drug cartel La Familia Michoacana. Gascar-Corona would provide Sanchez with cocaine at no cost but under the proviso that Sanchez would turn over the money after the drugs sold. Given this arrangement, Gascar-Corona needed confidence in Sanchez. So, he initially provided Sanchez with two or three kilograms of cocaine at a time. Once Sanchez proved he could sell that quantity, the size of the shipments increased. Gascar-Corona started giving Sanchez twenty to thirty kilograms at a time. Sometimes, he provided as much as forty kilograms. Sanchez sold cocaine for Gascar-Corona until June or July 2009. During that approximately two-year period, Gascar-Corona sold nearly $2.5 million worth of drugs, and Sanchez was his largest wholesaler.

Throughout this time, Sanchez lived in a rented home with his girlfriend, their two children, his aunt, his grandmother, and his grandmother's boyfriend. Notably, Sanchez used this residence in furtherance of the conspiracy. Gascar-Corona would sometimes meet other wholesalers at Sanchez's home in order to distribute drugs to those individuals. More importantly, as the Presentence Investigation Report (" PSR" ) stated, Sanchez " would receive the supply of drugs directly at his garage and payment would be picked up from the garage at a later date." (PSR at 4.) He would also " hide the drugs in the attic in order to keep ... [other people] ... from discovering what he was doing." (Def.'s Version of the Offense at 3.) Sanchez, however, " kept narcotics there only as long as he had to, quickly transferring them from the premises." ( Id. )

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By August 2009, the Drug Enforcement Agency had caught on. They arrested Sanchez, but his girlfriend's father posted bail a month later. Gascar-Corona was also arrested. While waiting for the government to bring charges, both Sanchez and Gascar-Corona became informants. Sanchez wore a wire and provided other information, but his tips did not lead to any new arrests, nor did they materially advance existing investigations. Gascar-Corona's information, in contrast, led to the arrest of a high-ranking drug-dealer in Mexico, whom the Mexican government later agreed to extradite to the United States.

In April 2010, a grand jury indicted Sanchez for conspiring to possess, with intent to distribute, more than five kilograms of a cocaine mixture, in violation of 21 U.S.C. §§ 841 and 846. Sanchez pled guilty on April 12, 2011. He did not sign a written plea agreement.

The PSR recommended a total offense level of thirty-seven. This recommendation included a two-point increase for a defendant who " maintained a premises for the purpose of manufacturing or distributing a controlled substance." U.S.S.G. § 2D1.1(b)(12). Sanchez objected to this enhancement for two reasons. First, he claimed that applying the enhancement to him violated the ex post facto clause of the U.S. Constitution. He based that argument on the fact that the enhancement did not become effective until November 1, 2010, over a year after he committed his offense. See U.S.S.G. § 2D1.1(b)(12) & app. C. amend. 748 (Nov. 1, 2010). Second, Sanchez argued that the enhancement, as written, did not apply to him. He claimed that he did not maintain the premises, and, even if he did, he did not do so for the purpose of selling drugs. The district court overruled the objection on both grounds, adopted the PSR's factual findings, and applied the sentencing enhancement to Sanchez.

At Sanchez's sentencing hearing, defense counsel discussed various factors that militated in favor of a mitigated sentence. Relevant here, counsel brought to the court's attention the sentencing of Gascar-Corona. The district court had not yet sentenced Gascar-Corona, but the government had recommended a lesser punishment than it had for Sanchez, in exchange for Gascar-Corona's helpful information. Sanchez argued that this disparity could not stand. Specifically, he claimed that he tried to cooperate just as much as Gascar-Corona, but, because Gascar-Corona was more deeply enmeshed in the drug business, he had more useful information to offer. Sanchez argued that it did not make sense to reward Gascar-Corona for being the more culpable party. The district court said that it was too speculative to consider Gascar-Corona's sentence at that time, and it thus could not use the information in determining Sanchez's punishment. The district court also noted that " the Seventh Circuit does not look with approval on sentencing in terms of comparison between co-defendants, to make it all come out ... symmetrical." (Sent. Tr. at 20.)

On October 25, 2011, the district court sentenced Sanchez to 262 months of incarceration, followed by five years of supervised release. This sentence represented the minimum penalty recommended by the Sentencing Guidelines. As of this writing, Gascar-Corona has yet to be sentenced, although his plea agreement recommends a sentence of 126 months. Sanchez timely filed a notice of appeal regarding his sentence on November 8, 2011.

II. ANALYSIS

Sanchez presents four issues on appeal. First, he renews his objection that the

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sentencing enhancement found in U.S.S.G. § 2D1.1(b)(12), as applied to him, violates the ex post facto clause. Second, he also renews his claim that the enhancement, even if it could be constitutionally applied to him, simply does not apply, given the facts of his case. Third, Sanchez argues that the district court committed a procedural error by not considering the disparity with Gascar-Corona's potential sentence. Finally, he argues that the court committed a substantive error by imposing an unreasonable sentence in light of Sanchez's cooperation with the government. We address each of these arguments in turn.

A. Ex Post Facto Clause

The Constitution prohibits ex post facto laws. U.S. Const. art. I, § 9, cl. 3. Sanchez claims that, when applied to him, the new sentencing enhancement found in § 2D1.1(b)(12) violates that prohibition. The sequence of events is critical to understanding this claim. Sanchez stopped distributing cocaine in June or July 2009, but he did not plead guilty until April 2011. In the intervening time, as part of the Fair Sentencing Act of 2010, Congress mandated that the Sentencing Commission promulgate the enhancement at issue. P.L. 111-220 § 6(2), 124 Stat. 2372, 2373. The Sentencing Commission did so, and the enhancement became effective on November 1, 2010. See U.S.S.G. § 2D1.1(b)(12) & app. C. amend. 748 (Nov. 1, 2010). Because the enhancement did not take effect until after Sanchez committed his offense, he thus contends that the district court could not apply it to him without violating the ex post facto clause. This claim presents a constitutional question, which we review de novo. Anderson v. Milwaukee County, 433 F.3d 975, 978 (7th Cir.2006).

We can make short work of Sanchez's argument. In United States v. Demaree, we held that amendments to advisory sentencing guidelines do not implicate the ex post facto clause, even if the amendments were passed...

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