United States of America v. Constantino Perales

NONPRECEDENTIAL DISPOSITION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 January 9, 2020
Decided January 13, 2020

Before

DIANE P. WOOD, Chief Judge

FRANK H. EASTERBROOK, Circuit Judge

AMY C. BARRETT, Circuit Judge

No. 18-3407
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CONSTANTINO PERALES,
Defendant-Appellant.

Appeal from the United
States District Court for the
Northern District of Illinois,
Eastern Division.

No. 13 CR 888-1
Amy J. St. Eve, Judge.
Order

Constantino Perales, a physician, pleaded guilty to conspiring to distribute a con-
trolled substance (oxycodone). As part of the plea agreement he admitted prescribing
several other opiates without a bona fide medical reason. He has been sentenced to 144
months’ imprisonment.

Before being sentenced Perales asked the judge to set aside his plea and hold a trial.
The judge denied that motion, finding that Perales had not established a “fair and just
reason” (Fed. R. Crim. P. 11(d)(2)(B)) for that step. 2018 U.S. Dist. LEXIS 132122 (N.D. Ill.
Aug. 7, 2018).

No. 18-3407 Page 2
Perales asserted that his lawyers had hectored him into pleading guilty and that he
was suffering from a panic attack at the time. The judge found the first of these conten-
tions insufficient because Perales had said just the opposite, under oath, when pleading
guilty. A defendant cannot obtain a benefit by contradicting assurances given to a judge
under oath. United States v. Stewart, 198 F.3d 984, 987 (7th Cir. 1999). The judge found
the second contention insufficient because Perales’s demeanor and conduct were the
same on the day he pleaded guilty as they had been earlier during the prosecution, at
times when he does not contend that he was suffering a panic attack. The judge provid-
ed funds for Perales to consult a mental-health expert. Perales retained Dr. Steven Gas-
kell, who conducted an independent examination, administered tests, and examined the
relevant documents. Dr. Gaskell concluded that Perales acted knowingly, intelligently,
and voluntarily when he pleaded guilty. The judge accepted Dr. Gaskell’s assessment.

Perales asserts on appeal that these decisions reflect factual errors or an abuse of dis-
cretion. We disagree with that contention and accept the reasons the presiding judge
gave.

Perales also contends that, before imposing sentence, the judge did not adequately
consider his arguments in mitigation. The range recommended by the Sentencing
Guidelines is 151 to 188 months in prison, yet the actual sentence (144 months) is lower,
which implies judicial appreciation of arguments in mitigation. Perales insists that the
judge should have given weight to the fact that his crimes cost him his medical license.
Yet the judge did not disregard the role of his license; indeed, she deemed the fact that
Perales had misused his license to be an aggravating factor. Sentencing Tr. 41–43, 45.
The fact that Perales spent 74 days in solitary confinement following his arrest—the
second matter that he says the judge overlooked—was expressly covered at sentencing
(Tr. 43–44), and the judge explained why it does not justify a lower sentence.

Finally, Perales asserts that one or more of his lawyers in the district court furnished
ineffective assistance of counsel. He did not present such an argument in the district
court, and it would be inappropriate to consider it now, on an undeveloped record.
(Perales, though represented by counsel, filed a pro se document that may be under-
stood as complaining that his lawyers were not doing their jobs, but the judge did not
understand this as a motion for a hearing to explore a claim of ineffective assistance.)
Perales is free to raise this subject by a motion under 28 U.S.C. §2255. See Massaro v.
United States, 538 U.S. 500 (2003).
AFFIRMED