United States of America v. Ramon L. Cruz

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2188
United States of America,
Plaintiff-Appellee,
v.
Ramon L. Cruz,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99-CR-205--Charles N. Clevert, Judge.
Argued November 15, 2000--Decided November 30, 2000
Before Posner, Easterbrook, and Kanne, Circuit Judges.
Posner, Circuit Judge. The defendant was
sentenced to 75 months in prison for possession
with intent to distribute 156 grams of heroin. 21
U.S.C. sec. 841(a)(1). He challenges his sentence
on the ground that he was eligible for a
sentencing discount as a minor or minimal
participant in the conduct that resulted in his
arrest and conviction. See U.S.S.G. sec. 3B1.2.
The defendant carried the 156 grams by train
from New York to Milwaukee, where he was
arrested. It appears that he was part of a larger
operation; he may indeed have been only a
courier; but no one else involved in his offense
was arrested, and as a result he was charged only
with possession with intent to distribute the 156
grams; nor was any other aspect of the larger
operation of which his transportation of the
heroin may have been a part deemed relevant
conduct affecting his sentence.
When no conduct of other participants in a
criminal scheme is attributed to a defendant for
purposes of sentencing, our cases hold that he is
not entitled to a sentencing discount because he
is a minor or minimal participant in some larger
criminal activity of which the conduct for which
he is being punished is a part. E.g., United
States v. Almanza, 225 F.3d 845, 846 (7th Cir.
2000); United States v. Hamzat, 217 F.3d 494, 497
(7th Cir. 2000); United States v. Isienyi, 207
F.3d 390, 392 (7th Cir. 2000). This is the view
of most of the other circuits as well, as noted

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in United States v. Almanza, supra, 225 F.3d at
846. Cruz asks us to reexamine our position,
noting that two other circuits reject it. United
States v. Snoddy, 139 F.3d 1224, 1230-31 (8th
Cir. 1998); United States v. Demers, 13 F.3d
1381, 1385-86 (9th Cir. 1994). But these
decisions have been discussed and either
distinguished or rejected in the cases in our
court cited above, and so they provide no basis
for overruling those cases. In any event we think
our position is correct. An example will show
why. Imagine two defendants, each a courier for a
drug ring. One of the drug rings is very large,
is in fact international in scope. The other is
very small, is in fact entirely local. Defendant
A, who is part of the large ring, possesses 156
grams of heroin with intent to distribute.
Defendant B, who is part of the small ring,
possesses 156 grams of heroin with intent to
distribute. Both are charged just with that
possession, and in sentencing the judge gives no
weight to the activities of the other members of
the ring. Nevertheless, on Cruz’s submission, A
should receive a lighter sentence than B because
he is part of the larger ring, implying that the
other participants are bigger fry relative to him
than the other participants in B’s conspiracy are
relative to B. We cannot see the logic of that
position. The defendants’ conduct is identical,
and they are being punished just for that conduct
and not for the conduct of anyone else. To
differentiate their punishment on the basis of
activity unrelated to their culpability would be
arbitrary. Indeed, to punish more lightly the
participant in the more serious conspiracy
strikes us as downright perverse.
Affirmed.

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