UNITED STATES OF AMERICA, Plаintiff-Appellee, v. JESUS RAUL BELTRAN-LEON, Defendant-Appellant.
No. 19-2615
United States Court of Appeals For the Seventh Circuit
Argued October 26, 2020 – Decided August 13, 2021
Rubén Castillo, Judge.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 1:09-cr-00383-16 — Rubén Castillo, Judge.
ARGUED OCTOBER 26, 2020 — DECIDED AUGUST 13, 2021
Before EASTERBROOK, ROVNER, and WOOD, Circuit Judges.
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 coсaine, 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
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 hе 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.
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) impropеrly failed to recuse from the sentencing proceeding under the Federal Recusal Statute,
A.
Beltran does not challenge the calculation of the guidelines range. He contends
Where the defendant or prosecutor presents nonfrivolous reasons for imposing a different sentence, however, the judge will normally go further and explain why he has rejected those arguments. Sometimes the circumstances will call for a brief explanation; sometimes they will call for a lengthier explana-tion. Where the judge imposes a sentence outside the Guidelines, the judge will explain why he has done so.
Rita, 551 U.S. at 357. See also United States v. Stephens, 986 F.3d 1004, 1010 (7th Cir. 2021) (at a sentencing, the judge must correctly calculate the range, address the parties’ principal arguments, consider the statutory factors, and explain the sentence; but the court need not march through every factor under
The court spent nearly two full days conducting the sentencing proceedings
In addressing the
I didn‘t use the obstruction enhancement, but he certainly doesn‘t come across like that in the recordings that we heard yesterday. That‘s all I will tell you. It doesn‘t sound like the person you‘re describing right now, Mr. Brindley, so I just have to call you on that.
R. 780, at 276. The court thus rejected the idea that the mistreatment that Beltran suffered at the hands of Mexican officials significantly affected his risk of recidivism. Counsel also argued that the torture affected Beltran‘s level of trust with the government and influenced his decision not to cooperate. The court rejected this argument as the basis for any reduction in the sentence, finding that the court needed to send a message that, “if you‘re going to be involved in this type of drug dealing at this level and you decide not to cooperate, then you will serve a significant sentence in the United States if you‘re successfully prosecuted[.]” R. 780, at 287–88. The court further noted that “there is a premium on cooperating because you do put your life at risk in cooperating.” R. 780, at 288. The court thus considered the claim that torture affected Beltran‘s decision not to cooperate but declined to give it any effect due to concerns about general deterrence in a case of this magnitude and the need to encourage cooperation in the future.
The court further explained the sentence by remarking that Beltran was a “very, very significant drug dealer and probably one of the most significant drug dealers I have sentenced, and we—there‘s a price to be paid for being involved in a drug conspiracy as large as this was ultimately headed by Mr. Guzman who was tried in New York.” R. 780, at 284. That conduct evinced a great need for general deterrence because of the magnitude of Beltran‘s crime, which included high level involvement with a largе conspiracy run by a notorious drug cartel. The court thus considered and rejected Beltran‘s claim that public knowledge of the torture would adequately address general deterrence regardless of the length of Beltran‘s sentence. See R. 704, at 13.
Beltran‘s counsel further posited that the torture served as part of the punishment for the crime that was “worth something,” and it was up to the judge to decide how much. In written pleadings for the sentencing, Beltran also contended that the torture would affect Beltran‘s daily experience in prison, causing increased fear and anxiety regarding his possible
To place the court‘s explanation of the sentence in context, we include the bulk of the court‘s concluding remarks here:
So you decided to involve yourself in [the conspiracy], and, yes, today you do make a statement which I want to rely on in terms of how much you have reformed, but I am unsure as to how much you really, really have reformed. I cannot calculate that. What I do know is that you were a serious drug conspirator at a high level, and I need to sentence you accordingly.
The elephant in the room is this allegation of torture by Mexican Marines, and it is hard for me to get a handle on that because there‘s no clear proof. There certainly is no proof of any kind that the DEA was involved or anybody from the United States. There‘s a suspicion, but as I said before, our—we don‘t operate our legal system here in the United States based on suspicion.
If that were the case, I‘d be sentencing you a lot higher because there‘s a strong suspicion that you were trying to do something to one of the witnesses in this case, but we cannot rely on suspicion. We are a country of laws. And ... we cannot have a situation where the end justifies the means in the administration of criminal law.
So ultimately the United States does not sanction torture of any kind in any country, and that is the United States that I‘m proud to serve as a United States District Court Judge.
Did the Mexicаn Marines torture Mr. Beltran Leon? It will take a power greater than me to come to the bottom line of that, but I do submit that he has put forth some evidence indicating severe mistreatment, and I do think that part of the reason for that is what I waved around before is that they, meaning the Mexican military personnel, because at the end of the day, the Assistant United States Attorneys and I are not the ones busting through doors in Mexico arresting people who are heavily armed. They, Mexican military personnel, have to undertake that service.
They‘ve lost considerable personnel in Mexico. ... 750 military personnel dead. I‘d like to know the number of family members of military personnel who have been killed, because that would be a sad story, let alone if we go to media who have bеen killed in Mexico. That‘s a whole ‘nother story.
So nothing good has come out of the cartels that have existed in Mexico, and that‘s sad to me because for all of my almost 65 years, Mexican blood has run through my veins, and so this is a personal hurt that I feel every day. So I repeat, Mexico is tired of this violence, and so is the United States.
So at the end of the day, I do agree with Mr. Brindley that Mr. Beltran Leon‘s sentence should be somewhat modified downward because of what may have occurred because the end doesn‘t justify the means. So at the end of the day, I believe the sentence that is appropriate for Mr. Beltran Leon, because of his involvement in this significant drug conspiracy that breeds nothing but harm to this country because I will tell you every day I see that, in my work with former fеderal prisoners who are addicted to cocaine and heroin, mostly minority men and women, it is a sad day, I‘m going to
sentence Mr. Beltran Leon to 28 years in the custody of the Attorney General. That is what I believe is a sufficient-but-no-greater-than-necessary sentence, a sentence of 336 months in custody. And I believe a message should go out that if you‘re going to be involved in this type of drug dealing at this level and you decide not to cooperate, then you will serve a significant sentence in the United States if you‘re successfully prosecuted, and that is the message that I think my fellow judges have been sending out. It is a different situation if you cooperate, and there is a premium on cooperating because you do put your life at risk in cooperating, and I don‘t minimize for one sеcond that Mr. Perez is at risk, our first witness in this sentencing proceeding, by giving the testimony he has given. That‘s just a fact of life. And I think any judge worth his or her salt will take into consideration cooperation each and every time.
R. 780, at 285–88.
This discussion, in combination with other remarks we have cited, supplies a more than adequate explanation for why the court imposed the substantially below-guidelines sentence that it did. Although Beltran objects to some of the court‘s comments, it is plain that the court considered the
B.
We turn to Beltran‘s specific objections, beginning with his claim that the district judge violated his due process rights by considering ethnicity in setting Beltran‘s sentence. Specifically, in assessing Beltran‘s claim that he had been tortured by the Mexican military, the judge remarked on the loss of military personnel in Mexico who had been killed by members of drug cartels and noted his Mexican heritage and his own sense of “personal hurt,” as we quoted above. See R. 780, at 287. Under the guidelines, national origin is not relevant to the determination of a sentence.
Nevertheless, in the context of a two-day hearing that covers two hundred and ninety-four pages of transcript, it is apparent that the judge did not use his own or the defendant‘s ethnicity in determining the substantially-below guidelines sentence. When it is clear that the judge‘s reference to his own ethnicity did not affect the selection of the sentence, there is no due process violation. See e.g., United States v. Traxler, 477 F.3d 1243, 1249 (10th Cir. 2007) (noting that due process analysis of a judge‘s bias extends only to those circumstances where impermissible personal views expressed at sentencing were the basis of the sentence, and collecting cases). As we discussed above, the court fully explained the reasons for its choice of the sentence, and those reasons are well-founded in the law (including the
C.
Two of Beltrаn‘s other objections arise from the same part of the sentencing hearing and so we will address them together. First, Beltran objects to the court‘s apparent use of extra-record material in setting the sentence. Second, he asserts that the district court improperly drew a negative inference from his failure to testify at sentencing, in violation of his Fifth Amendment rights. In the second day of the sentencing proceedings, the judge took issue with one of Beltran‘s lawyers after counsel said that his client‘s claims of torture were credible and “[i]f there‘s any issue of credibility, it has to be on that table right there. They‘re the ones that have been hiding this information for a long time.” R. 780, at 256. Counsel followed this with an accusation that the DEA was “right in the middle of all these tortures, and they‘re saying we don‘t know anything about it. That‘s incredible.” R. 780, at 257. The court noted that defense counsel had pointed to the government‘s table when making this accusation, and remarked that the court had seen no evidence of government counsel hiding information. Nor had the court been presented with any evidence that the DEA was “in the middle of torture in Mexico.” The court warned counsel of “needlessly, needlessly expending your credibility with this Court.” R. 780, at 256–57. The court then asked counsel for proof of the claim that the DEA was in the middle of the torture in Mexico, and counsel conceded he had none. The court said:
You don‘t have one witness other than your client, who doesn‘t take the witness stand and he‘s free to take the witness stand. Let him take the witness stand right now and see how that goes for him.
R. 780, at 258. Counsel replied that Beltran had filed an affidavit regarding the torture. The court then asked four times whether Beltran would take the witness stand and repeat the affidavit. Counsel replied that Beltran would not take the witness stand. In response, the court said:
Okay. And there‘s a reason for that, and any lawyer in this business knows the reason behind that.
So please don‘t do this. You‘re needlessly expending your credibility with this Court, and you‘re tarnishing reputations of prosecutors in this courtroom. For what? For what? You don‘t have proof.
R. 780, at 258. After essentially agreeing that he lacked direct proof of DEA involvement, counsel reiterated that Beltran was tortured.
The court then changed direction and asked counsel what was driving the torturing of narcotics defendants in Mexico. Counsel ventured that Mexican authorities were seeking information on other people through the use of torture. The court then responded:
Is that all? Do you think that‘s all? Do you think that‘s all, sir? How about this? Let me just show you this: “Mexico war on drugs leaves 750 military personnel dead,” okay?
R. 780, at 260. The item that the court showed counsel, that the court “waved around,” was apparently an article that the
Beltran objects that the court wrongly relied on extra-record material in setting the sentence when it cited an article regarding the deaths of Mexican military personnel as a possible motive or justification for the torture of drug suspects. A defendant has a due process right to be sentеnced only on the basis of reliable information. United States v. Adams, 879 F.3d 826, 829 (7th Cir. 2018). A “court is generally prohibited from relying on undisclosed evidence as this deprives the parties of the opportunity to rebut or respond to the evidence.” United States v. Betts, 576 F.3d 738, 744 (7th Cir. 2009). A court should therefore not rely on an undisclosed article. Moreover, the matters the court discussed based on this article, including the number of military personnel killed in the war on drugs, and possible motives for the military to engage in torture of narcotics suspects, are not matters for judicial notice. Tobey v. Chibucos, 890 F.3d 634, 647–48 (7th Cir. 2018) (a court may judicially notice only a fact that is not subject to reasonable dispute).
The government contends that Beltran did not preserve this objection because counsel did not object to this material during the sentencing hearing and largely agreed that the substance of the article was correct, that is, that hundreds of Mexican military personnel have been killed in the war on drugs, and that the torture of drug suspects was occurring in reaction to those deaths. R. 780, at 262 (where defense counsel states, “I agree with you. I agree with you ... I would say there‘s hundreds[.]“). Beltran asserts that this is not a fair reading of the record and points to earlier parts of the transcript where counsel would only say that he “suspect[ed]” Mexican Marines had died in the war on drugs. Beltran also asserts that the “court was clearly angered at what it perceived to be defense counsel‘s lack of empathy” for Mexican law enforcement agents. Reply Brief, at 6. In the end, our review of the record shows that counsel never objected to the court‘s references to the article and ultimately agreed with the substance of the court‘s statements, as we noted above. Counsel instead disputed the significance of this information, and the court then agreed with counsel that, although these law enforcement deaths might explain why torture was occurring, it did not justify the torture in any way.
Beltran forfeited his objection to the court‘s use of this article by not raising it below. His suggestion that counsel did not object because the court was angry at counsel‘s lack of empathy does not change the analysis. See Puckett v. United States, 556 U.S. 129, 134 (2009) (“If a litigant believes that an error has occurred (to his detriment) during a federal judicial proceeding,
In the context of the entire record, it is apparent that the court did not use this extraneous material in setting the sentence, and certainly did not use it to Beltran‘s detriment. If anything, the court‘s references to the article supported the court‘s factual finding that Beltran had been mistreated by the Mexican military because the article supplied a credible motive for torture that supported Beltran‘s less than fully credible story. The court ultimately agreed that, despite holes in Beltran‘s affidavit and a lack of corroborating evidence on the issue of torture, Beltran was severely mistreated, and that it was wrong for this to occur. On the basis of that finding in Beltran‘s favor, the court discounted his sentence significantly. Again, we can say with confidence after reviewing the record as a whole that this article did not adversely affect the selection of the sentence.
As for Beltran‘s claim that the court improperly drew a negative inference from his failure to testify at sentencing in violation of his Fifth Amendment rights, after the court pronounced the sentence, the government asked the court to clarify those remarks. The court explained:
I have not held that against the defendant, but I just wanted to clarify that he put forth an affidavit, and there were some holes in that affidavit the way I saw it in terms of who did what, and there was just no opportunity to buttress that in any sense, but I understand he has a right not to testify.
R. 780, at 293. Beltran contends that the court‘s explanatory comments came too late and were insufficient to overcome the court‘s remarks regarding Beltran‘s failure to testify, especially in light of the court‘s comment that “there‘s a reason for that, and any lawyer in this business knows the reason behind that.” We disagree. The court explained that its earlier comments reflected only that the affidavit was insufficient by itself and that Beltran presented no other evidence to explain the inconsistencies or corroborate his assertions. In any case, the court ultimately did in fact credit Beltran‘s claim of mistreatment, noting only that Beltran had failed to provide credible evidence of mistreatment rising to the level of torture. The court significantly discounted Beltran‘s sentence based on this claim, setting a sentence twenty percent lower than the government‘s request for a sentence of at least thirty-five years.
D.
Beltran finally asserts that the district judge should have recused from the sentencing proceedings under
Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his imрartiality might reasonably be questioned.
When a defendant raises an objection for the first time on appeal, we ask whether the defendant has shown that the error was obvious, affects substantial rights, and seriously affects the fairness, integrity, or public reputation of the proceedings. United States v. Olano, 507 U.S. 725, 732 (1993). To determine whether a judge‘s violation of
Beltran does not meet the standard for plain error here, largely for the reasons we set forth above. In particular, he is unable to demonstrate that any improper factors affected the court‘s selection of the substantially below-guidelines sentence here. The
Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. They may do so if they reveal an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible. ... Not establishing bias or partiality, however, are expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men аnd women, even after having been confirmed as federal judges, sometimes display.
Liteky v. United States, 510 U.S. 540, 555–56 (1994). This was not a case where fair judgment was impossible. Indeed, impossibility of a fair judgment would be a most curious claim when advanced by a defendant who has dodged a life sentence by a very wide margin. ”
III.
Our review of the entire proceeding gives us complete confidence that none of the discussed factors affected the selection of Beltran‘s sеntence.
AFFIRMED.