United States v. Beltran-Leon

• Citation: 9 F.4th 485
• Decision Date: 13 August 2021
• Docket Number: No. 19-2615,19-2615
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus Raul BELTRAN-LEON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

9 F.4th 485

UNITED STATES of America, Plaintiff-Appellee,

v.Jesus Raul BELTRAN-LEON, Defendant-Appellant.

No. 19-2615

United States Court of Appeals, Seventh Circuit.

Argued October 26, 2020

Decided August 13, 2021

Andrianna D. Kastanek, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff - Appellee.

Patrick W. Blegen, Attorney, Blegen & Garvey, Chicago, IL, for Defendant - Appellant

Before Easterbrook, Rovner, and Wood, Circuit Judges.

Rovner, Circuit Judge.

Jesus Raul Beltran-Leon ("Beltran") pleaded guilty to one count of conspiracy to possess with intent to distribute controlled substances, in violation of 21 U.S.C. §§ 841(a) and 846. Although his properly calculated guidelines range was life in prison, the court ultimately sentenced Beltran to twenty-eight years’ imprisonment. Beltran challenges that sentence on multiple grounds. We affirm Beltran's substantially below-guidelines sentence.

I.

From at least 2009 until his arrest in November 2014, Beltran was a high level lieutenant in a cell of the Sinaloa Cartel, a transnational drug-trafficking organization based in Mexico. At the time, the Sinaloa Cartel was led by Joaquin Guzman Loera, also known as "El Chapo," and the cell for which Beltran worked was led by two of El Chapo's sons, Ivan and Alfredo Guzman. Beltran coordinated, brokered and facilitated the movement of large amounts of cocaine and other drugs between and within South and Central America, Mexico and the United States. He also coordinated and oversaw the collection of significant payments for drug proceeds. He pled guilty to Count I of a five-count Ninth Superseding Indictment, which charged conspiracy to possess with intent to distribute controlled substances, including cocaine, heroin, methamphetamine and marijuana.

Prior to being charged with this crime, Beltran had never been arrested much less convicted of a crime. Although his plea declaration referenced a single transaction involving forty-six kilograms of cocaine, his lawyer agreed that "it's an absurd view that Mr. Beltran Leon only engaged in one single drug transaction here or there." R. 780, at 212–13. Counsel agreed that Beltran was involved with the movement of hundreds of kilograms of controlled substances in a "number of transactions" with the sons of El Chapo over a period of years. R. 780, at 213. Under the guidelines, this placed him in Criminal History Category I. For the purposes of sentencing, the government proposed that Beltran was responsible for more than 450 kilograms of cocaine and ten kilograms of heroin, and the probation office and the court concurred with that assessment. That resulted in a base offense level of 38.

The probation officer and/or the government recommended a number of sentencing enhancements including: (1) a two-level increase because the offense involved the use of a dangerous weapon, under USSG § 2D1.1(b)(1) ; (2) a two-level increase because Beltran used violence, made a credible threat of violence, or directed the use of violence, under USSG § 2D1.1(b)(2) ; (3) a two-level enhancement for the use of bribery or attempted bribery of law enforcement personnel to facilitate the crime, under USSG § 2D1.1(b)(11) ; (4) a two-level enhancement for committing the offense as part of a pattern of criminal conduct engaged in as a livelihood, under USSG § 2D1.1(b)(16)(C), (D), and (E), and § 2D1.1 comment 20(B) and (C), and § 4B1.3; (5) a two-level increase for maintaining a premises (a stash house) for the purposes of manufacturing or distributing a controlled substance, under USSG § 2D1.1(b)(12) and USSG § 2D1.1 comment 17; (6) a four-level increase for being an organizer or leader of criminal activity that involved five or more participants or was otherwise extensive, under USSG § 3B.1.1(a); and (7) a two-level enhancement for obstruction of justice, under USSG § 3C1.1. After hearing testimony from witnesses presented by the government and considering other evidence and the arguments of counsel, the district court applied the enhancements for use of a firearm, bribery, criminal livelihood, and leader or organizer of criminal activity; the court rejected the enhancements for the use of violence; maintaining a stash house, and obstruction of justice. This added up to an adjusted offense level of 48, from which the court subtracted three levels for acceptance of responsibility, for a total of 45. Under Chapter 5, Part A, Application Note 2 of the guidelines, an offense level of more than 43 is to be treated as an offense level of 43.¹ Combined with Criminal History Category I, the advisory guidelines "range" was a single point: life imprisonment. The government requested a sentence of no less than thirty-five years in light of Beltran's "extraordinarily serious conduct, his history and characteristics, and to avoid sentencing disparities." R. 714, at 18.

Beltran, in turn, argued for the mandatory minimum sentence of ten years. Beltran's principal argument in mitigation was a claim that the Mexican authorities who effected his arrest tortured him before turning him over to the United States. This torture, Beltran contended, affected the analysis of the section 3553(a) factors. For example, Beltran argued that a long sentence was not necessary for general deterrence because the fact that he was tortured by members of the Mexican government who worked in close proximity with U.S. law enforcement would deter others. Similarly, for specific deterrence, Beltran argued that the level of brutality he experienced in his first arrest was a life-changing event that was likely to deter him from any criminal conduct in the future without regard to the length of his sentence. Beltran made similar arguments for the remaining section 3553(a) factors, essentially arguing that the torture he suffered at the hands of Mexican authorities overrode any of the usual concerns addressed by the section 3553(a) factors. He also argued that the torture was itself punishment for which he should receive some sentencing credit.

The court entertained argument from both sides on Beltran's primary claim in mitigation. As we will detail below, the proceedings became contentious when defense counsel suggested that U.S. law enforcement officers had somehow participated in or sanctioned the torture, and when counsel implied that the government's lawyers had failed to turn over evidence related to the torture. At two points in the hearing, the judge referenced an article that had not been disclosed to the parties. According to the judge, the article established that Mexican law enforcement suffered hundreds of deaths at the hands of drug cartels, and the judge suggested that the aggression of Mexican law enforcement was a response to this loss of life. The judge, who noted that he is of Mexican descent, also expressed "personal hurt" over the violence that drug cartels have caused in Mexico. The court nevertheless significantly discounted Beltran's sentence from the guidelines range of life (and even from the minimum of thirty-five years requested by the government) in recognition of the "severe mistreatment" that Beltran experienced, setting a final sentence of twenty-eight years. Beltran appeals.

II.

Beltran challenges the sentence on the grounds that the district judge: (1) violated his due process rights when the judge considered his own ethnicity in setting Beltran's sentence; (2) improperly considered irrelevant, extra-record evidence in determining his sentence; (3) failed to explain adequately the basis for the sentence; (4) improperly drew a negative inference from Beltran's failure to testify at sentencing, in violation of his Fifth Amendment rights; and (5) improperly failed to recuse from the sentencing proceeding under the Federal Recusal Statute, 28 U.S.C. § 455. We review constitutional challenges to a sentence de novo . United States v. Fletcher , 763 F.3d 711, 715 (7th Cir. 2014) ; United States v. Brucker , 646 F.3d 1012, 1016 (7th Cir. 2011). Our review of sentencing decisions generally is limited to whether they are reasonable, applying the abuse of discretion standard. Gall v. United States , 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ; United States v. McLaughlin , 760 F.3d 699, 703 (7th Cir. 2014). We first must ensure that the district court committed no significant procedural error, including, among other things, "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range." Gall , 552 U.S. at 51, 128 S.Ct. 586. Whether the district court committed procedural error is a question of law that we review de novo . United States v. Griffith , 913 F.3d 683, 687 (7th Cir. 2019). We review the district court's findings of fact for clear error. United States v. Knox , 624 F.3d 865, 870 (7th Cir. 2010). Sentences that are within the properly calculated guidelines range are entitled to a rebuttable presumption of reasonableness. Rita v. United States , 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007) ; United States v. Mykytiuk , 415 F.3d 606, 608 (7th Cir. 2005). If the district court erred in sentencing Beltran, we will apply the doctrine of harmless error in determining whether resentencing is necessary. United States v. Olson , 450 F.3d 655, 683 (7th Cir. 2006). An error related to the validity of a defendant's sentence is harmless only if it did not affect the district court's choice of sentence. Olson , 450 F.3d at 683.

A.

Beltran does not challenge the calculation of the guidelines range. He contends that the district court's selection of a sentence below the guidelines range was based on impermissible factors and that the court did not adequately explain the basis for the sentence. A court's failure to explain...