United States of America v. Jose Luis Maciel

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 7, 2013
Decided August 9, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 12-3218
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE LUIS MACIEL,
Defendant-Appellant.
Appeal from the United
States District Court for the
Northern District of Illinois,
Eastern Division.
No. 10 CR 652
Amy J. St. Eve, Judge.
Order
Jose Luis Maciel was sentenced to 188 months’ imprisonment after a jury convicted
him of distributing cocaine and related offenses. This is the low point of the 188 to 235
month range the district court calculated under the Sentencing Guidelines. Maciel’s sole
appellate argument is that the district judge should have treated him as a minor partici-
pant in the offense, which would have reduced his offense level. U.S.S.G. §3B1.2. He did
not request this reduction in the district court, however, and the judge did not commit
plain error by deciding not to raise the possibility herself.
A reduction under §3B1.2 depends on a conclusion that the defendant is substantial-
ly less culpable than the average participant in the offense. See United States v. Leiskunas,
656 F.3d 732, 739 (7th Cir. 2011). Maciel was a major-league courier. The evidence at tri-
al documented his delivery of 20 kilograms of cocaine on one occasion and 45 kilos on
another. He was a long-distance truck driver who added drugs to the manifest of legit-

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No. 12-3218 Page 2
imate cargo, receiving $2,000 for his services after each delivery. Evidence in the record
shows that he dealt directly with the top of an organized drug-distribution network and
transported cocaine regularly; the prosecutor’s decision to stop with proof of two epi-
sodes does not imply that these were the limit of his responsibility.
Couriers have received reductions under §3B1.2 when the evidence shows that they
were bit players. The situation of Victor Diaz-Rios, to whom Maciel delivered the 45-
kilo shipment, illustrates. We concluded that Diaz-Rios was eligible for a reduction
(though not necessarily entitled to it) because that delivery was a one-off deal for him,
and he did not know the type or quantity of drugs he received. United States v. Diaz-
Rios, 706 F.3d 795 (7th Cir. 2013). Maciel was a regular, was trusted with million-dollar
cargos, and knew exactly what he was carrying. If he had requested a reduction under
§3B1.2, the district judge would have been entitled to say no, for these and other rea-
sons. See, e.g., United States v. Saenz, 623 F.3d 461, 468 (7th Cir. 2010); United States v.
Gonzales, 534 F.3d 613, 617 (7th Cir. 2008); United States v. Mendoza, 457 F.3d 726, 729–30
(7th Cir. 2006). It follows that the district judge did not commit plain error when she ac-
cepted the presentence report’s calculation, in the absence of any request by the defend-
ant for a reduction under §3B1.2.
AFFIRMED

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