United States of America v. Jaime Sandoval-Ocampo

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 24, 2009
Decided June 25, 2009
Before
KENNETH F. RIPPLE, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 08‐3253
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JAIME SANDOVAL‐OCAMPO,
Defendant‐Appellant.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 01‐CR‐188
Charles N. Clevert, Jr.
Judge.
O R D E R
Jaime Sandoval distributed large quantities of drugs in Milwaukee, Wisconsin, as
part of a drug‐trafficking ring, and when agents arrested Sandoval at his home, they found
a gun. He was charged with conspiring to distribute cocaine and marijuana, 21 U.S.C.
§§ 846, 841(a)(1), and with using a telephone to facilitate the distribution of drugs, id.
§ 843(b). Sandoval was released pending trial, but he absconded in February 2003 shortly
after the district court had denied his motions to suppress the evidence seized from his
apartment along with his post‐arrest statements.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

-- 1 of 4 --

No. 08‐3253 Page 2
Sandoval remained a fugitive until he was finally caught in August 2007, and during
those years, he assumed a new identity and moved to three different states. Once back in
Wisconsin, Sandoval pleaded guilty to the conspiracy count and a new charge of failing to
appear in court, see 18 U.S.C. § 3146(a)(1). He was sentenced to a total of 97 months’
imprisonment.
Sandoval filed a notice of appeal, but his appointed lawyer now seeks to withdraw
under Anders v. California, 386 U.S. 738 (1967), because he is unable to discern a nonfrivolous
issue to pursue. Counsel’s supporting brief is facially adequate, and Sandoval has filed a
response opposing counsel’s submission. See Cir. R. 51(b). We limit our review to the
potential issues identified in counsel’s brief and Sandoval’s response. See United States v.
Schuh, 289 F.3d 968, 973‐74 (7th Cir. 2002).
Counsel has evaluated whether Sandoval could challenge either the voluntariness of
his guilty pleas or the adverse ruling on his motions to suppress. But we need not discuss
the guilty pleas or the plea colloquy because Sandoval has made clear in his 51(b) response
that he wishes only to challenge his sentence and does not want his guilty pleas set aside.
See United States v. Knox, 287 F.3d 667, 670‐72 (7th Cir. 2002). And because those pleas were
unconditional, any appellate issue concerning the suppression ruling necessarily would be
frivolous. See United States v. Villegas, 388 F.3d 317, 322 (7th Cir. 2004); United States v.
Elizalde‐Adame, 262 F.3d 637, 639 (7th Cir. 2001). We thus limit our discussion to potential
challenges to Sandoval’s sentence.
In the plea agreement, the government promised to recommend a three‐level
downward adjustment for acceptance of responsibility. Nothing was said in the written
agreement about the possibility of an increase for obstruction of justice based on Sandoval’s
flight to avoid prosecution. Sandoval acknowledged, however, both in the written plea
agreement and again during the plea colloquy, that the parties’ understandings did not bind
either the probation officer, who would make her own recommendations, or the sentencing
judge, who would ultimately determine Sandoval’s imprisonment range and sentence. And
during the plea colloquy, Sandoval assured the district court that no one had promised him
a particular sentence and that he understood that the court and probation officer were not
parties to the plea agreement.
The probation officer determined that Sandoval was responsible for 652 grams of
cocaine and assigned a base offense level of 26. See U.S.S.G. § 2D1.1(c)(7). After adding two
levels for Sandoval’s possession of the gun found in his house, see id. § 2D1.1(b)(1), the
probation officer added two more levels for obstruction of justice, see id. § 3C1.1. And
because of the increase for obstruction, the probation officer refused to follow the
government’s recommendation that Sandoval be credited for acceptance of responsibility.

-- 2 of 4 --

No. 08‐3253 Page 3
See id. § 3E1.1. This total offense level of 30, combined with a criminal history category of I,
yielded an imprisonment range of 97 to 121 months. Sandoval’s conviction for failure to
appear did not affect this range because the § 3146 violation was grouped with the drug
conspiracy, which carried the higher offense level. See id. §§ 2J1.6 cmt. nn. 2‐3, 3C1.1 cmt.
n.8, 3D1.2.
At sentencing the district court accepted the probation officer’s recommendation that
Sandoval did not deserve a downward adjustment for acceptance of responsibility because
he had absconded for nearly four years, assumed a new identity, and moved to three
different states. The district court also adopted the probation officer’s other
recommendations and imposed a prison term of 97 months, the low end of the range. Had
the court granted a three‐level decrease for acceptance of responsibility and not added two
levels for obstruction of justice, Sandoval’s total offense level would have been 25 and his
imprisonment range 57 to 71 months.
Counsel considers challenging the upward adjustment for obstruction of justice. As
counsel recognizes, however, any argument about that adjustment would be frivolous
because Sandoval fled while on pretrial release, assumed a new identity, and evaded
authorities for four years. See id. § 3C1.1 cmt. n. 4(e); United States v. King, 506 F.3d 532, 535
(7th Cir. 2007); United States v. Porter, 145 F.3d 897, 903‐04 (7th Cir. 1998).
Counsel also considers arguing that the district court committed clear error by
rejecting the government’s recommendation that Sandoval receive a reduction for
acceptance of responsibility. Our review of the court’s finding would be for clear error, see
United States v. Samuels, 521 F.3d 804, 817 (7th Cir. 2008), and we agree with counsel that the
potential argument is frivolous. A district court is not required to accept the government’s
sentencing recommendations, United States v. Marty, 450 F.3d 687, 691 (7th Cir. 2006), and,
indeed, we presume that an upward adjustment for obstructing justice precludes a
downward adjustment for accepting responsibility, see United States v. Krasinksi, 545 F.3d
546, 554 (7th Cir. 2008); United States v. Partee, 301 F.3d 576, 580‐81 (7th Cir. 2002). The
district court was entitled to abide by that presumption because Sandoval evaded justice for
four years before pleading guilty.
Finally, in his Rule 51(b) response, Sandoval proposes to argue that the plea
agreement obligated the district court to impose a sentence within a range of 57 to 71
months. His argument, which presumes that the court’s findings as to acceptance of
responsibility and obstruction of justice are erroneous, would be frivolous. The plea
agreement does not promise Sandoval a sentence within a particular range; in fact, the
agreement does not even recommend a proposed range. As relevant here, the government
simply agreed to recommend a decrease for acceptance of responsibility, and that promise

-- 3 of 4 --

No. 08‐3253 Page 4
was fulfilled. More importantly, as the district court reminded Sandoval during the plea
colloquy, the plea agreement did not bind the probation officer or the court. Thus, even if
the agreement had included a recommended range of imprisonment, the court would not
have been obligated to impose a sentence within that range. See Marty, 450 F.3d at 691.
Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.

-- 4 of 4 --