Opinion
23-2618
10-18-2024
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALEJANDRO PATINO, Defendant-Appellant.
NONPRECEDENTIAL DISPOSITION
Submitted October 15, 2024
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division No. 1:20-CR-00736(1) John F. Kness, Judge.
Before MICHAEL Y. SCUDDER, Circuit Judge JOHN Z. LEE, Circuit Judge NANCY L. MALDONADO, Circuit Judge
ORDER
Alejandro patino pleaded guilty to one count of attempting to knowingly and intentionally possess with intent to distribute 100 grams or more of heroin, 21 U.S.C. §§ 841(a)(1), 846, and he received a prison sentence of 78 months. patino filed a notice of appeal, but his appointed attorney asserts that the appeal is frivolous and moves to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). patino has responded to counsel's motion, see CIR. R. 51(b), but he does not identify any argument he seeks to raise on direct appeal. Counsel's brief explains the nature of the case and addresses the potential issues that an appeal of this kind might involve. Because his analysis appears thorough, and Patino raises no additional issues to consider, we limit our review to the subjects that counsel discusses. United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
In January 2020, Patino traveled to Mexico seeking revenge against people who had badly beaten his grandmother. He struck a deal with members of a local organized crime group: They would kill the people responsible for the assault on Patino's grandmother, and Patino would accept delivery of two packages of heroin in the United States. In October 2020, inspectors at a FedEx facility selected a package from Mexico addressed to Patino, labeled as containing homemade mole, for intensive inspection. Inside the package, inspectors found two jars containing bags that held, in total, 498 grams of heroin. Law enforcement officers replaced the heroin with a sham substance and rigged the parcel with a trigger that would alert them when it was opened. A federal agent posing as a delivery driver gave the package to Patino, who opened it. Law enforcement officials responded immediately and executed a search of Patino's home. They then arrested Patino and took him to a police station where federal agents read him his Miranda rights and interrogated him. After waiving his rights, Patino told the agents about the deal he had struck with the drug organization.
Patino was federally indicted in November 2020. He moved to suppress the statements he had made at the police station. He argued that, while still at his house, officers had improperly interrogated him and searched his phone. This pre-Miranda, in-home interrogation, Patino contended, tainted the interrogation at the station, requiring suppression of statements he made there. Patino filed two affidavits, the second of which was a handwritten, more detailed affidavit that Patino filed pro se against the advice of his attorney. Both affidavits stated that officers had handcuffed Patino and placed him on his couch, interrogated him about the FedEx package without having read him his Miranda warnings, and scrolled through his phone without his consent. The government responded that the officers did not interrogate Patino or search his phone until he had been read his rights at the police station. And at the suppression hearing, the government offered testimony from the agent who interrogated Patino, photos from the search, video of the interrogation at the station, and records including a signed Miranda waiver form. Patino presented no more evidence. The court credited the agent's account and denied the motion to suppress.
Without an agreement with the government, Patino pleaded guilty five days before trial. A probation officer prepared a Presentence Investigation Report (PSR), calculating a total offense level of 30 under the Sentencing Guidelines. This included a 26-point base offense level, a two-level increase for "us[ing] violence, ma[king] a credible threat to use violence, or direct[ing] the use of violence" under U.S.S.G. § 2D1.1(b)(2) (for hiring the hit men), and a two-level increase for obstruction of justice under U.S.S.G. § 3C1.1 (for making false statements in the affidavits). Patino's criminal history category was I, producing a range of imprisonment of 97 to 121 months.
At the sentencing hearing, after addressing arguments related to the offense-level increases, the district court adopted the PSR in full. The court determined that because the deal Patino struck with the hit men was the but-for cause of his attempted possession of heroin, Patino had made "a credible threat of violence" under § 2D1.1(b)(2). And because of that finding, the court concluded that Patino was ineligible for the safety valve. See U.S.S.G. § 5C1.2(a)(2). For purposes of § 3C1.1, the court said that it was "very clear" that Patino intended to obstruct justice by testifying falsely in his affidavits. Then, discussing the sentencing factors under 18 U.S.C. § 3553(a), the court acknowledged that Patino had cooperated, pleaded guilty, did not seem capable of future crimes, and had a difficult upbringing. The court imposed a below-range term of 78 months of imprisonment and 4 years of supervised release.
In his Anders brief, counsel appropriately forgoes consideration of potential challenges to Patino's guilty plea because counsel "advised Mr. Patino about the risks and benefits" associated with such a challenge, and Patino instructed him not to challenge the plea. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287F.3d 667, 670-71 (7th Cir. 2002).
Counsel turns to potential arguments about the sentence and first concludes, correctly, that it would be frivolous for Patino to raise any procedural challenge. We would review any alleged procedural error de novo. United States v. Jerry, 55 F.4th 1124, 1130 (7th Cir. 2022). The 78-month sentence is less than the 40-year statutory maximum, and so any argument that Patino's sentence violated the law would be frivolous. See 21 U.S.C. § 841(b)(1)(B); id. § 846. Counsel also notes that the district court correctly calculated a base offense level of 26 because Patino admitted that his offense involved 498 grams of heroin. See U.S.S.G. § 2D1.1(a)(5), (c)(7).
Next, counsel correctly concludes that the record supports the two-level increase under U.S.S.G. § 2D1.1(b)(2). First, Patino's hiring of hit men was sufficiently connected to his drug offense to be relevant conduct, which includes uncharged conduct "germane to the charged offense" and which is not temporally limited to conduct that occurs during the offense of conviction. U.S.S.G. § 1B1.3(a); United States v. Jones, 313 F.3d 1019, 1023 (7th Cir. 2002). Here, Patino would not have engaged in drug trafficking had he not entered the arrangement to have people killed. Further, Patino's conduct could be characterized as having been committed "in preparation for" his receiving drugs in the mail. See U.S.S.G. § 1B1.3(a). Patino traveled to Mexico to arrange a murder. He agreed-and made the necessary arrangements-to accept packages of drugs as his payment for a violent act on his behalf. Hiring the hit men, then, was undertaken "in preparation for" the reciprocating crime of drug possession.
Second, Patino's admitted conduct satisfies the terms of § 2D1.1(b)(2). Counsel posits that the court's characterization of Patino's conduct as "a credible threat of violence" is inapt because no one conveyed a threat to the victims. But counsel concludes that Patino "direct[ed]" the use of violence and so qualified for the adjustment nevertheless. Because we have not addressed what it means to direct the use of violence (and the Guidelines offer no guidance), counsel supports his point with out-of-circuit precedent. See United States v. McDonald, 43 F.4th 1090, 1098 (10th Cir. 2022); United States v. Perez, 962 F.3d 420, 451 (9th Cir. 2020). Although we have not parsed this language before, we cannot imagine that hiring someone to commit murder does not qualify as "directing" violence. We would not interpret the Guidelines in a way that defies a common-sense understanding of what constitutes violent conduct. See United States v. Harden, 866 F.3d 768, 771 (7th Cir. 2017). Therefore, we agree with counsel that it would be frivolous to contend that Patino's solicitation of murder does not qualify him for the adjustment, even if there was no "threat" (an issue that we do not decide).
As a result, Patino could not plausibly argue that he is eligible for the safety valve. U.S.S.G. § 5C1.2; 18 U.S.C. § 3553(f). This provision applies only if the defendant did not threaten violence or induce another person to use violence in connection with the underlying offense. 18 U.S.C. § 3553(f)(2). Because Patino admitted to attempting to hire a hit man, and the court applied § 2D1.1(b)(2), the safety valve could not apply.
Counsel next correctly concludes that Patino could not raise a nonfrivolous challenge to the two-level increase for obstruction of justice under U.S.S.G. § 3C1.1. This adjustment is proper when a defendant gives false testimony under oath regarding a material matter with the willful intent to provide false testimony. See United States v. DeLeon, 603 F.3d 397, 403 (7th Cir. 2010). Building off its credibility determinations from the suppression hearing, the district court found that Patino's attestations that officers interrogated him and searched his phone before reading him his Miranda rights were false. A district court's choice between two views of the evidence cannot be a clear error, so it would be frivolous to challenge the finding that Patino willfully fabricated information in his affidavits. United States v. House, 883 F.3d 720, 723 (7th Cir. 2018). Further, the court concluded that the matter was material because Patino sought to ha the evidence against him suppressed based on his statements. We would review de novo the materiality of the falsehoods, see DeLeon, 603 F.3d at 402, and statements that are calculated to substantially affect a pretrial ruling are material, id. at 403.
Accordingly, it would also be frivolous for Patino to argue that he should have received a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. There is a presumption that this reduction does not apply to a person who receives an enhancement for obstruction of justice. See United States v. Gonzalez-Mendoza, 584 F.3d 726, 730-31 (7th Cir. 2009). As counsel rightly concludes, no "exceptional circumstances" would overcome this presumption here.
Having ruled out procedural challenges, counsel next correctly concludes that i would be frivolous to challenge the substantive reasonableness of Patino's sentence. W review substantive reasonableness for abuse of discretion. United States v. Holder, 94 F.4th 695, 700 (7th Cir. 2024). Patino's 78-month sentence is below the properly calculated Guidelines range, creating a "nearly irrebuttable presumption" on appeal that it is not unreasonably long. Id. Nothing in the record suggests that this presumption could be overcome given the court's explanation of the sentence in terms of the § 3553(a) sentencing factors. See Jerry, 55 F.4th at 1130. The court identified the seriousness of the conduct, pointing out the quantity of the drugs and Patino's agreement to have someone killed. The court also discussed factors in mitigation, including Patino's rough upbringing and his cooperation with the government. The court considered these factors alongside the need to deter Patino and others from committing similar conduct in the future.
Counsel also appropriately rejects any challenge to the length and conditions o Patino's supervised release. Patino waived his right to challenge the conditions of his supervised release by confirming at the hearing that he had no objections to the conditions. United States v. Flores, 929 F.3d 443, 449 (7th Cir. 2019). And the four-year term of supervision is required by statute. 18 U.S.C. § 841(b)(1)(B).
Finally, we note an error in the judgment. Patino was charged with and pleade guilty to attempting to knowingly and intentionally possess with intent to distribute a controlled substance under 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. Section 846 cover both attempt and conspiracy. The judgment-and counsel in his brief-incorrectly state that Patino pleaded guilty to conspiracy to distribute a controlled substance. The judgment conflicts with the record (the indictment, the change-of-plea and sentencing transcripts, and the PSR). It is a clerical error, correctable at any time with appropriate notice See FED. R. CRIM. P. 36; United States v. Anobah, 734 F.3d 733, 739-40 (7th Cir. 2013). No additional notice is necessary here because the parties and court were aware of the correct offense of conviction. We therefore order the clerk to correct the judgment to reflect a conviction for attempt to possess a controlled substance under 21 U.S.C. § 846.
With that modification to the judgment, we GRANT counsel's motion to withdraw and DISMISS the appeal.