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Date: 01-10-2019

Case Style:

United States of America v. Arturo Bustos

Case Number: 18-1388

Judge: Bauer

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Illinois (Cook County)

Plaintiff's Attorney:

Defendant's Attorney:

Description:





Arturo Bustos conspired with his codefendants
to deliver 995 grams of heroin to an undercover
officer. Bustos pleaded guilty to one count of conspiracy to
distribute a controlled substance and was sentenced to 100-
months imprisonment. Bustos now appeals his 100-month
sentence. For the reasons that follow, we affirm.
2 No. 18-1388
I. BACKGROUND
Arturo Bustos, Enemicio Bustos, Omar Landa, and Tomas
Landa conspired to sell heroin to an undercover officer
(“UCO”). Arturo and Enemicio engaged in multiple phone
conversations with the UCO, arranging a date, time, and
location to sell 995 grams of heroin for $180,000. On
October 12, 2016, Enemicio drove Arturo to the meet location.
Arturo entered the UCO’s car and instructed him to drive to a
second location where he would receive the heroin. At the
second location, Omar entered the vehicle to verify that the
UCO brought the $180,000 in cash. With the cash verified,
Tomas then arrived carrying a firearm and the 995 grams of
heroin.
The four men were charged with conspiracy to possess and
distribute a mixture containing 100 grams or more of heroin on
October 12, 2016, in violation of 21 U.S.C. §§ 841(a)(1) and 846
(Count Two), and distribution of 100 or more grams of heroin
in violation of 21 U.S.C. §§ 841(a)(1) and (2) (Count Three).
Enemicio was additionally charged with violating 21 U.S.C.
§ 841(a)(1) for a previous heroin deal which took place on
September 9, 2016 (Count One). Tomas was additionally
charged with possessing a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c) (Count Four).
Enemicio, whose criminal history consisted of one prior
burglary charge, was sentenced to 65 months of imprisonment.
Tomas received a 110-month sentence.
Arturo admitted that he agreed to distribute 995 grams of
heroin to the UCO and pleaded guilty to Count Two of the
indictment. He admitted that he and Enemicio engaged in
No. 18-1388 3
phone conversations with the UCO to set up the transaction
and that he and Omar met with the UCO to verify he had the
cash necessary to buy the heroin.
At the sentencing hearing, the district court calculated
Arturo’s criminal history category as V for the following
reasons. On September 24, 2009, Arturo was convicted of
manufacturing and delivering cocaine. Although an arrest
warrant was issued, and he was charged in 1990, he avoided
arrest and sentencing until 2009. If the 1990 case had proceeded
at a more typical pace, this conviction would have been too old
to enhance the criminal history calculation and resulted in a
criminal history category of III, which carries a recommended
sentencing range of 70 to 87 months. Arturo was also convicted
of two newly committed offenses: possession of a controlled
substance and possession of an altered identification card.
Arturo committed the instant offense while on parole from his
12–year sentence for the above convictions. Arturo also had
two convictions that were too old to warrant additional
criminal history points.1
The criminal history category of V, together with the
adjusted offense level of 25 based on the quantity of heroin,
resulted in an advisory sentencing range of 100-125 months
imprisonment, with a statutory mandatory minimum sentence
of 60 months. Arturo made no objection to the Guidelines
calculation.
1 In 1979, Arturo was convicted of distribution of heroin and was
sentenced to five years’ probation. In 1985, he was sentenced to one year of
probation for resisting a peace officer.
4 No. 18-1388
Rather than argue the calculations were incorrect, Arturo
argued a below-Guidelines sentence of 60 months imprisonment
was warranted under 18 U.S.C. § 3553(a). He asserted the
criminal history calculation “over represented” his criminal
history due to the time between the 1990 crime and his
conviction. Arturo also argued that his co-defendants played
a larger role in the conspiracy and a lower sentence would
avoid a disparity between his sentence and Enemicio’s. Arturo
offered his advanced age, poor health, and low likelihood of
recidivism as additional factors favoring a downward departure
from the Guidelines range. Lastly, Arturo argued that he
faced harsh conditions in pre-trial detention due to his health
and would face harsh conditions in prison because of his status
as a deportable alien. This status, he asserted, prevented him
from accessing Bureau of Prison programs and resources
including the residential drug treatment program, which could
reduce his term of imprisonment by one year.
After Arturo’s argument, the court went over the factors it
considered important in determining the sentence. The court
cited the seriousness of trafficking a significant amount of
heroin, the disastrous effects of the illicit drug trade on
communities, and the fact that Arturo had been involved in
dealing drugs for over 30 years. The court noted that he
squandered the opportunity to correct his behavior after
receiving only probation for his 1979 conviction and found it
inappropriate to give him a below-Guidelines sentence
considering his prior history and the fact that the instant
offense was committed while he was on parole for his 2009
conviction. The court considered the fact that Arturo came into
the conspiracy at a later stage than Enemicio but concluded
No. 18-1388 5
that his role was significant. The court discussed several of the
mitigating factors emphasized by Arturo, including his
addiction problems and his poor childhood.
Taking all of this into account, the court imposed the lowest
possible within-Guidelines sentence of 100-months imprisonment.
II. ANALYSIS
This court reviews de novo claims of procedural error at
sentencing. United States v. Banks, 828 F.3d 609, 618 (7th Cir.
2016). Procedural error occurs when a court “fails to calculate
(or improperly calculates) the Guidelines range, treats the
Guidelines as mandatory, fails to consider the § 3553(a) factors,
selects a sentence based on clearly erroneous facts, or fails to
adequately explain the chosen sentence.” Gall v. United States,
552 U.S. 38, 51 (2007). The district court must also “consider a
defendant's principal, nonfrivolous arguments for lenience.”
United States v. Martin, 718 F.3d 684, 687 (7th Cir. 2013)
(per curiam). In considering such arguments, the judge must
demonstrate that he “has considered the parties arguments and
has a reasoned basis for exercising his own legal decisionmaking
authority.” Rita v. United States, 551 U.S. 338, 356
(2007).
The transcript of the sentencing hearing shows that the
district court gave thorough consideration to the facts of this
case and to the defendant’s arguments. It discussed the
seriousness of the offense and rejected Arturo’s attempt to
minimize the role he played in the conspiracy. The court did so
correctly. Arturo admitted in his plea agreement that he helped
to arrange the meeting location for the drug deal, and partici6
No. 18-1388
pated in determining the quantity and price of the drugs to be
sold. Arturo then personally participated in the drug deal by
meeting with the UCO. Though he was not involved in the
conspiracy from the outset, once he joined he was involved
completely and played a critical role.
The court also rejected Arturo’s argument that his past
criminal conduct was over-represented. There is no error in
the court’s rejection of Arturo’s argument that his avoidance
of arrest and sentencing for nearly 20 years was mitigating.
To conclude otherwise would minimize Arturo’s conduct
and reward his successful flight from justice. The court
appropriately determined that Arturo’s criminal history
enhanced the need to promote respect for the law and provide
deterrence. This history of criminal conduct explains the
disparity between Arturo’s sentence and his co-defendants.
Arturo’s more extensive criminal history warranted a longer
sentence.
While the court did not directly comment on Arturo’s
health or status as a deportable alien in its discussion of the
§ 3553(a) factors at the sentencing hearing, we do not require
district courts to treat sentencing factors as a checklist or to
spell out their analyses of each factor. See, e.g., United States v.
Panaigua-Verdugo, 537 F.3d 722, 728 (7th Cir. 2008) (“The
district court need not address each § 3553(a) factor in checklist
fashion, explicitly articulating its conclusion for each factor;
rather, the court must simply give an adequate statement of
reasons, consistent with § 3553(a), for believing the sentence it
selects is appropriate.”). It is enough that the record confirms
that the court has given meaningful consideration to the
§ 3553(a) factors. United States v. Williams, 425 F.3d 478, 480
No. 18-1388 7
(7th Cir. 2005). Arturo has merely demonstrated through his
arguments and legal authority cited that the court could have
exercised its discretion with a more lenient sentence.
Arturo’s argument that recidivism rates for those over 60
years of age is “nearly zero percent” rings hollow in light of the
fact that Arturo committed this third drug offense at the age
of 62. The district court noted:
It is tragic that [Arturo] is 62 years of age, and at
this time in this life finds himself in this situation
with really nothing. But there is nothing I
can do about the defendant’s own deliberate
choice of lifestyle. He made these decisions that
brought him here today, to continue to commit
offenses, to continue to sell illegal drugs, to
continue to violate the law even into his late
years. I see no likelihood that this defendant’s
age will in any way be a deterrent to further
criminal conduct.
And as to his health, Arturo presented no evidence that the
Bureau of Prisons would be unable to provide him with
adequate healthcare.
The district court rejected Arturo’s argument regarding his
deportable status implicitly, noting that the fact that Arturo
would be deported would make him unlikely to face additional
state charges after his release. The court also stated, after
discussing the § 3553(a) factors, that Arturo would not be
required to report to a probation office for supervised release
nor would the conditions of his supervised release be applicable
if he is deported to Mexico. The court further declared that
8 No. 18-1388
Arturo should be given an opportunity to participate in the
residential drug treatment program by the Bureau of Prisons
despite his immigration status.
Arturo also argues that the 100-month sentence was
substantively unreasonable. We presume that a within-
Guidelines sentence is substantively reasonable. United States
v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). Arturo bears the
burden of overcoming that presumption of reasonableness.
United States v. Cunningham, 883 F.3d 690, 701 (7th Cir. 2018).
He attempts to rebut that presumption by arguing his sentence
“results in essentially a life sentence driven primarily by the
Appellant’s over-represented criminal history despite the
Appellant’s relatively minor role in the instant offense.” The
district court rejected the argument that Arturo’s criminal
history was over-represented, and this court agrees. Arturo
has not shouldered his burden of showing the sentence was
unreasonable, and failed to show that the district court did not
give meaningful consideration to the § 3553(a) factors.

Outcome: Meaningful consideration was given to Arturo’s arguments
in favor of mitigation, the 100-month within-Guidelines
sentence was substantively reasonable, and the sentencing
order is AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

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