United States of America v. Wilfredo Castro-Ospitia

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 30, 2008
Decided February 22, 2008
Before
JOEL M. FLAUM, Circuit Judge
DANIEL A. MANION, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 07‐2105
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
WILFREDO CASTRO‐OSPITIA,
Defendant‐Appellant.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division
No. 05 CR 393‐2
Samuel Der‐Yeghiayan,
Judge.
O R D E R
Wilfredo Castro‐Ospitia pleaded guilty to conspiring to possess heroin with
intent to distribute. See 21 U.S.C. §§ 846, 841(a)(1). During the plea colloquy he
admitted that the conspiracy involved between one and three kilograms of heroin,
which triggered a statutory minimum sentence of 10 years. See id. § 841(b)(1)(A). The
district court calculated a guidelines imprisonment range of 120 to 135 months, and
sentenced Castro‐Ospitia to 130 months. On appeal Castro‐Ospitia argues that his
sentence is unreasonable because, he insists, the district court failed to take into account
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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the poor health of his wife and son, his limited criminal history, and his cooperation
with the government. We affirm.
Castro‐Ospitia was involved in a scheme to import approximately 2.5 kilograms
of heroin from Colombia to the United States. Unfortunately for him, two of his
purported cohorts actually were confidential informants for the government. Castro‐
Ospitia was indicted for conspiring to import heroin, 21 U.S.C. §§ 963, 960(a)(1);
conspiring to possess heroin with intent to distribute, id. §§ 846, 841(a)(1); and
attempting to possess heroin with intent to distribute, id. §§ 846, 841(a)(1). He pleaded
guilty to a single count of conspiring to possess heroin with intent to distribute,
ostensibly without a plea agreement. The district court accepted the guilty plea.
During the plea colloquy the government asserted that Castro‐Ospitia was an organizer
or leader of the conspiracy. At the time Castro‐Ospitia disputed this characterization,
but he conceded the point before sentencing.
At the sentencing hearing the parties agreed that the base offense level was 32
and that Castro‐Ospitia was subject to a 2‐level upward adjustment as an organizer or
leader of the conspiracy, and a 3‐level reduction for acceptance of responsibility. The
district court determined, and the parties agreed, that due to the statutory minimum,
the guidelines imprisonment range effectively was 120 to 135 months. The court then
invited argument concerning the appropriate sentence. Defense counsel started by
representing to the court that Castro‐Ospitia’s wife and son suffered from depression,
and that the Castro‐Ospitia’s 17‐month pretrial detention had been “devastating” for
the child. Counsel, though, introduced no evidence to support these factual assertions.
Counsel also emphasized that, other than a traffic offense, the heroin charge was
Castro‐Ospitia’s first run‐in with authorities. Counsel then pointed out that, if Castro‐
Ospitia had not been an organizer or leader of the conspiracy, the safety valve, see 18
U.S.C. § 3553(f); U.S.S.G. § 5C1.2, would have made him eligible for a sentence below
the statutory minimum. Finally, counsel told the court that Castro‐Ospitia had
“cooperated” in the government’s investigation by participating in three proffer
sessions and giving a detailed account of his involvement in the conspiracy. Counsel
acknowledged, however, that Castro‐Ospitia’s information did not help the government
because the co‐conspirators he named already had been arrested before his proffers.
Nonetheless, counsel urged the court to take into account Castro‐Ospitia’s purported
cooperation. Counsel proposed a term at the statutory minimum. The prosecutor
argued for a term higher in the range. He observed that Castro‐Ospitia’s crime was
serious, but acknowledged that his statements to authorities were truthful, if not
helpful.

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The district court sentenced Castro‐Ospitia to 130 months. The court explained
that it arrived at the sentence after taking into account the factors under 18 U.S.C.
§ 3553(a) and the arguments presented at the hearing and in writing. The court
addressed and rejected Castro‐Ospitia’s arguments for a shorter sentence, concluding
that his placement in Category I adequately accounted for his minimal criminal history,
that the hardship his family will suffer during his incarceration had to be balanced
against his extensive involvement in the conspiracy and the large amount of drugs
involved, and that his purported cooperation had been factored into the downward
adjustment for acceptance of responsibility. The court also noted that Castro‐Ospitia
had asked forgiveness from the court and his family, but countered that the drug trade
causes serious harm. The court concluded that its choice of sentence was “just
punishment,” and was “sufficiently severe” to deter Castro‐Ospitia and others and to
protect the public.
Castro‐Ospitia argues that his prison sentence is unreasonable because, he
contends, the court imposed it without meaningfully considering the § 3553(a) factors
and instead provided only a “rote”explanation for the sentence. Specifically, he argues
that the court ignored the hardship his confinement will cause to his family, his limited
criminal history, and his purported cooperation with the government.
In exercising its sentencing discretion, the district court need only consider the
relevant § 3553(a) factors and related arguments of the parties. See United States v.
Wachowiak, 496 F.3d 744, 748 (7th Cir. 2007); United States v. Filipiak,
466 F.3d 582, 583 (7th Cir. 2006). The district court must entertain, but is not required to
accept, a defendant’s serious arguments in favor of a lower sentence. Filipiak, 466 F.3d
at 583. If the district court sentences a defendant within the properly calculated
guidelines range, we presume the sentence is reasonable. See Rita v. United States, 127 S.
Ct. 2456, 2462 (2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 2005). To
rebut this presumption, a defendant bears the burden of showing that the sentence
imposed is unreasonable. See United States v. Garner, 454 F.3d 743, 751 (7th Cir. 2006).
We will not reverse just because a defendant disagrees with the district court’s
assessment of the relevant factors. United States v. Laufle, 433 F.3d 981, 988 (7th Cir.
2006).
Castro‐Ospitia describes the district court’s explanation for its sentence as a “rote
statement” that is insufficient to show that the court gave proper consideration to the
§ 3553(a) factors and to Castro‐Ospitia’s arguments. Although the district court’s

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discussion of its rationale is brief, it is more substantial than Castro‐Ospitia’s
characterization implies, and it is sufficient to assure us that the district court weighed
the 3553(a) factors, and heard and considered, but rejected, Castro‐Ospitia’s arguments.
The district court explicitly said that it was considering all of the § 3553(a)
factors. It later noted the seriousness of Castro‐Ospitia’s offense and reasoned that the
sentence would serve the purposes of just punishment, deterrence, and protection of the
public. The court also addressed each of Castro‐Ospitia’s arguments. The court took
into account Castro‐Ospitia’s limited criminal history but suggested that this factor was
encompassed in his criminal history score, observing that he “has one prior arrest and
his criminal history is one.” The court next acknowledged that Castro‐Ospitia’s
imprisonment will cause family hardship, but balanced this factor against his extensive
involvement in the conspiracy. There is nothing extraordinary about Castro‐Ospitia’s
argument that his imprisonment will harm his family. We have observed that, because
it is expected that a family will suffer when one of its members is imprisoned, family
circumstances generally are not relevant to a district court’s choice of sentence. See
United States v. Jaderany, 221 F.3d 989, 996 (7th Cir. 2000); see also U.S.S.G. § 5H1.6.
Although United States v. Booker, 543 U.S. 220 (2005), gave district courts wide
sentencing discretion, a reason for a lower sentence that was irrelevant before Booker is
still a bad reason after Booker. See United States v. Boscarino, 437 F.3d 634, 638 (7th Cir.
2006).
Castro‐Ospitia’s primary contention is that the district court failed to take into
account his argument that his purported cooperation with the government entitled him
to a lower sentence. But Castro‐Ospitia’s purported cooperation was not nearly great
enough to compel the district court to shorten his sentence. See Laufle, 433 F.3d at 988.
Castro‐Ospitia did not enter into a plea agreement that required him to cooperate with
the government. Instead, he debriefed the government about the conspiracy in the
hopes that he would become eligible for the safety valve. His leadership role in the
conspiracy doomed his attempt to get a sentence below the statutory minimum, and
nothing required the district court to give him credit for his purported cooperation
anyway. And Castro‐Ospitia did not even cooperate as completely as he contends. He
continued to deny the full extent of his role in leading and organizing the conspiracy
until just before sentencing. In the presentence investigation report, prepared less than
two months before sentencing, the probation officer reports that Castro‐Ospitia had not
then admitted his leadership role. Castro‐Ospitia’s reluctance to acknowledge his role
early in the proceedings belies his contention now that he was fully cooperative with
the government.

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In any event, the district court’s discussion shows that it considered the
argument and rejected it. Although the court’s explanation is short, it suggested that
Castro‐Ospitia’s purported cooperation was already factored into the three‐point
reduction in his offense level that he received for accepting responsibility for his actions.
He was not entitled to more. See Laufle, 433 F.3d at 988.
The district court appropriately considered Castro‐Ospitia’s arguments against
the gravity of his offense and the other § 3553(a) factors. See United States v. Gammicchia,
498 F.3d 467, 469 (7th Cir. 2007). The court did not give Castro‐Ospitia’s arguments the
weight that he urged, but his disagreement with the court’s assessment does not
demonstrate that the court failed to consider them or that his sentence is unreasonable.
United States v. Haskins, 511 F.3d 688, 696 (7th Cir. 2007); Laufle, 433 F.3d at 988.
Moreover, we recently considered arguments nearly identical to those Castro‐Ospitia
advances here and observed they are “nothing more than stock arguments” that “a
sentencing court is certainly free to reject without discussion.” United States v. Tahzib,
No. 07‐2481, 2008 WL 151136, at *3 (7th Cir. Jan. 17, 2008). So, in addressing each of
Castro‐Ospitia’s “stock arguments,” the district court did more than was required.
The district court provided a sufficient explanation for the within‐guidelines
sentence it imposed, and Castro‐Ospitia has not rebutted the presumption that his
sentence is reasonable. Accordingly, we AFFIRM the sentence.

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