U.S. v. Gomez

• Decision Date: 16 May 1994
• Docket Number: 93-1534 and 93-1567,Nos. 92-3960,92-3995,s. 92-3960
• Citation: 24 F.3d 924
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Pedro GOMEZ, Fernando Magana, and Rigoberto Vela, Defendants-Appellants, Cross-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 924

24 F.3d 924

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Pedro GOMEZ, Fernando Magana, and Rigoberto Vela Defendants-Appellants, Cross-Appellees.

Nos. 92-3960, 92-3995, 93-1534 and 93-1567.

United States Court of Appeals Seventh Circuit.

Argued April 6, 1994.

Decided May 16, 1994.

Barry R. Elden, Asst. U.S. Atty., Jonathan C. Bunge (argued), Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Gary J. Ravitz, Chicago, IL, for defendants-appellants.

Before COFFEY, EASTERBROOK, and MANION, Circuit Judges.

EASTERBROOK, Circuit Judge.

Pedro Gomez, Fernando Magana, and Rigoberto Vela were convicted of distributing cocaine. The only issues on appeal concern their sentences.

1. Vela pleaded not guilty and went to trial. The jury found him guilty. At sentencing, Vela asked the judge to reduce his offense level on account of acceptance of responsibility. U.S.S.G. Sec. 3E1.1.

Unsurprisingly, the judge said no, because this reduction is designed as a reward for a guilty plea, which saves the judicial system the burden of trial, or for some equivalently concrete act, such as pretrial payment of full restitution. See United States v. Bean, 18 F.3d 1367 (7th Cir.1994). Vela did not take any concrete step demonstrating acceptance of responsibility, and the judge was not impressed by talk.

Surprisingly, Vela has appealed. Surprising because he hasn't a leg to stand on under the Guidelines, which make clear that this reduction is designed to reward pre-trial deeds rather than post-trial words. Bean, 18 F.3d at 1369; United States v. Beserra, 967 F.2d 254 (7th Cir.1992). Surprising because this court has never directed a district judge to award this reduction for a post-trial change of heart--indeed, has never directed a district judge to award the reduction even when the defendant pleaded guilty well in advance of trial. The standard of review is abuse of discretion, which is to say that we ask whether the decision was within a zone of reasonable responses to the facts. Add the Sentencing Commission's statement that the reduction "is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse", U.S.S.G. Sec. 3E1.1 application note 2, and it becomes impossible to see how any reasonable person could disagree with the district judge, let alone how every reasonable person must do so--which is what Vela has to show to obtain relief from the court of appeals. See Concrete Pipe and Products of California, Inc. v. Construction Laborers Pension Trust, --- U.S. ----, ----, 113 S.Ct. 2264, 2280, 124 L.Ed.2d 539 (1993) (observing that a judicial decision cannot be called "unreasonable" unless "no reasonable person would find it to be" appropriate).

Perhaps it is not so surprising that Vela has appealed, given the volume of such claims in this circuit. Recent published opinions include United States v. Osmani, 20 F.3d 266 (7th Cir.1994); United States v. Robinson, 20 F.3d 270 (7th Cir.1994); and United States v. Rosalez-Cortez, 19 F.3d 1210 (7th Cir.1994). There are more unpublished orders in the same vein. What we cannot understand is why people continue to advance foredoomed arguments. Although the Guidelines reserve the possibility of a reduction for a person who accepts responsibility for his acts but denies criminal liability--for example, admitting the charged conduct but contending that the statute is unconstitutional, U.S.S.G. Sec. 3E1.1 application note 2--Vela has not contended that he satisfies this exception. He argues, instead, that he elected not to plead guilty because the prosecutor wanted too high a sentence (a subject we discuss below). That is to say, he was utterly unwilling to accept responsibility for his deeds or to take any step implying that he would refrain from criminal activity in the future; he simply wanted to obtain the lowest punishment he could, by any strategy available. His argument is the antithesis of acceptance of responsibility.

If this were a civil case, we would award sanctions under Fed.R.App.P. 38 for the taking of a frivolous appeal. We have generally refrained from using this measure in criminal cases (although there are exceptions, see Wisconsin v. Glick, 782 F.2d 670 (7th Cir.1986)), but that the risk of sanctions is slight affords no excuse for a lawyer to violate his ethical duty to the court to refrain from making frivolous arguments. If the defendant insists on taking an appeal, the lawyer can fulfil his obligations to both court and client by filing an Anders brief.

2. Gomez and Magana pleaded guilty and received the reduction that Vela wanted. All three are discontented with the fines the judge imposed. According to the table of fines in U.S.S.G. Sec. 5E1.2(c)(3), each of the three was subject to a minimum fine of at least $10,000. Guideline 5E1.2(a) says that the judge "shall impose a fine in all cases, except where the defendant establishes that he is unable to pay and is not likely to become able to pay any fine." This language is to be taken seriously: the judge must impose a fine, unless the defendant demonstrates that he cannot pay anything, either at sentencing or in the foreseeable future. United States v. Ahmad, 2 F.3d 245 (7th Cir.1993); United States v. Turner, 998 F.2d 534 (7th Cir.1993); United States v. Ferrin, 994 F.2d 658, 665-66 (9th Cir.1993). Defendants bear a heavy burden, because almost everyone has or will acquire some assets.

Although Gomez, Magana, and Vela appeared to be penniless at the time of sentencing, the district judge observed that they are likely to earn wages in prison. He accordingly fined each defendant $3,000, to be paid from prison earnings. This is a downward departure from the guidelines; a claim that the judge should have made a greater departure ordinarily is outside our jurisdiction. United States v. Franz, 886 F.2d 973 (7th Cir.1989). But defendants say that the judge made a legal error, and an appeal from a sentence founded on a mistake of law is within our jurisdiction even if the dispute concerns the fact or extent of departure. United States v. Poff, 926 F.2d 588, 590-91 (7th Cir.1991) (en banc).

The legal error, according to defendants, is the belief that prison wages are available to satisfy fines. Yet the regulations establishing prison trust accounts do not contain spendthrift or anti-assignment clauses. Presumably prison administrators seek to achieve some objective by rewarding prisoners for their labor; confiscating 100% of the prisoner's wages would eliminate any incentive to work and defeat that objective. Regulations of the Bureau of Prisons accordingly permit prisoners to keep half of their wages no matter what their obligations; the other half, however, is available for alimony, civil debts--and fines. 28 C.F.R. Sec. 545.11(a)(3). Neither the text of the regulations nor any of defendants' arguments suggests that funds available to pay civil debts should be unavailable to pay criminal debts. Prisoners have no inherent right to chocolate bars and other snacks; we have accordingly held that trust accounts may be tapped to pay restitution. United States v. House, 808 F.2d 508 (7th Cir.1986). Just so with fines. Accord, United States v. Tosca, 18 F.3d 1352, 1355 (6th Cir.1994).

Having decided that prison wages are available in principle to pay fines, we have no authority to inquire into the precise amount of the fine the district judge specified. How far to depart below the minimum of the range is a question committed to the court's discretion. One feature of the Guidelines may influence the use of that discretion in future cases: Sec. 5E1.2(g) says that length of an installment schedule to pay a fine "generally should not exceed twelve months." The district judge anticipated that these defendants would pay throughout their terms of incarceration. Nothing was made of this proviso in the district court or the briefs on appeal, and "generally" is a plastic term that could not support our intervention on a theory of "plain error."

3. Vela is a repeat offender. In April 1990 he pleaded guilty, in the Circuit Court of Cook County, to a charge of possessing cocaine. The prosecutor accordingly asked the district judge to enhance Vela's sentence under 21 U.S.C. Sec. 841(b)(1)(B), which provides:

If any person commits [a violation of this section] after one or more prior convictions for an offense punishable under this paragraph, or for a felony under any other provision of this subchapter or subchapter II of this chapter or other law of a State, the United States, or a foreign country relating to narcotic drugs, marihuana, or depressant or stimulant substances, have become final, such person shall be sentenced to a term of imprisonment which may not be less than 10 years and not more than life imprisonment....

The crime to which Vela pleaded guilty in Illinois satisfies this language, but Vela argued, and the district court held, that he had not been "convicted" because he received a diversionary sentence. The state judge put Vela on a form of probation reserved for first offenders. The state statute authorizing this form of sentence specifies that at the end of the probationary period, the court shall "discharge the person and dismiss the proceedings against him" unless he violated the terms of the probation. 720 ILCS 570/410(f). The statute continues: "discharge and dismissal under this Section is not a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime." Vela completed his probation and was discharged; accordingly, the district court held, he lacked a "prior conviction" for purposes of Sec. 841(b)(1)(B). This holding depends on a conclusion that state law supplies the definition of a "conviction" under Sec. 841(b)(1)(B). Relying on Dickerson v. New Banner Institute,...