United States v. Vizcarra
2012 U.S. App. LEXIS 2385
| 7th Cir. | 2012Background
- Vizcarra and Aguirre participated in a kidnapping for ransom tied to a drug debt, abducting Victim A in Indiana, transporting to Illinois, and holding her for two days before rescue.
- Aguirre, Vasquez, Jacinto Vizcarra, and an unnamed co-conspirator were indicted for conspiracy and kidnapping; Aguirre and David Vizcarra pleaded guilty to kidnapping.
- At sentencing, Vizcarra challenged a six-level § 2A4.1(b)(1) ransom-demand enhancement and a disputed criminal-history category; the district court applied the enhancement and reduced Vizcarra’s criminal-history category to I.
- The district court sentenced Vizcarra to 168 months, the low end of the calculated guidelines range; Aguirre received 235 months.
- Aguirre’s counsel filed an Anders brief, seeking withdrawal after finding no nonfrivolous issues; Aguirre later filed a late response agreeing there were no nonfrivolous issues.
- The Seventh Circuit affirmed Vizcarra’s sentence and granted Aguirre’s counsel withdrawal and dismissed Aguirre’s appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ransom-demand enhancement constitutes double counting | Vizcarra contends same conduct supports base and upgrade. | Vizcarra argues enhancement duplicates element-based conduct. | Enhancement permissible; no double counting required. |
| Whether district court adequately addressed 3553(a) mitigating factors | Vizcarra claims court ignored mitigating factors. | Court gave meaningful consideration to §3553(a) factors. | Court adequately considered factors; no procedural error. |
| Whether 168-month sentence is substantively reasonable given mitigating factors | Vizcarra’s aberrational role and limited record warranted leniency. | Seriousness of crime justified the sentence; deterrence concerns valid. | Sentence within range and presumptively reasonable. |
| Whether Anders withdrawal is proper for Aguirre’s appeal | Aguirre challenges none meaningful; Anders justified. | No nonfrivolous issues to pursue. | Counsel's motion granted; appeal dismissed. |
Key Cases Cited
- United States v. Bell, 598 F.3d 366 (7th Cir. 2010) (double counting distinguished; textual bars govern)
- United States v. Lilly, 13 F.3d 15 (1st Cir. 1994) (double counting considered in circuit alignment)
- United States v. Wheeler, 330 F.3d 407 (6th Cir. 2003) (double counting not a constitutional issue)
- United States v. Senn, 129 F.3d 886 (7th Cir. 1997) (discussed double-counting as a baseline notion)
- United States v. Michalek, 54 F.3d 325 (7th Cir. 1995) (dragnet guidelines concept)
- United States v. Krumwiede, 599 F.3d 785 (7th Cir. 2010) (guideline interpretations and commentary authoritative)