United States of America v. Juan Hacha

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12‐2142
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
J UAN HACHA ,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CR 591 — Rubén Castillo, Chief Judge.
____________________
SUBMITTED J ULY 24, 2013 — D ECIDED A UGUST 23, 2013
____________________
Before P OSNER , MANION, and W OOD, Circuit Judges.
P OSNER , Circuit Judge. Juan Hacha and his wife, Ixchel
Solano, extorted money from Solano’s “friend” and former
boyfriend, Juan Carlos Tenorio. Hacha told Tenorio that he
had kidnapped Solano and her children and would harm
them (along with Tenorio and Tenorio’s parents) unless
Tenorio coughed up thousands of dollars in ransom. After
paying Hacha nearly $55,000, Tenorio contacted the FBI,
which arrested Hacha after recording calls to Tenorio in

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2 No. 12‐2142
which Hacha pretended to have shot Solano in the leg, bro‐
ken her fingers, and threatened to kill her and her children,
and in which she was heard screaming in the background.
Hacha and Solano were charged with conspiring to commit
extortion, 18 U.S.C. § 371, and with extortion. 18
U.S.C. § 875(b). Both pleaded guilty. She was sentenced to 42
months in prison and he to 87 months, the bottom of his
guidelines sentencing range.
He appeals, challenging the length of his sentence, but
his appointed counsel has concluded that the appeal wholly
lacks merit, and has therefore moved to withdraw from his
representation of the appellant. Anders v. California, 386 U.S.
738 (1967). Hacha opposes the motion. See 7th Cir. R. 51(b) &
Appendix I. The motion and opposition present several is‐
sues that are worth discussing for future reference (along
with some others that are not), though none turns out to be a
ground for denying counsel’s motion.
One issue is the amount that Hacha extorted from Teno‐
rio. Because the judge found that it exceeded $50,000 (by
$4,834), he added two levels to Hacha’s guidelines range.
U.S.S.G. §§ 2B3.2(b)(2), 2B3.1(b)(7)(C). Hacha had disputed
the loss amount in both a memorandum that he submitted at
sentencing and a “defendant’s version of the offense” that he
had submitted to his probation officer (and that was includ‐
ed in the presentence report also submitted at sentencing),
claiming that a large part of Tenorio’s payments to him rep‐
resented repayment of money that Solano had lent Tenorio
before the extortion. Tenorio denied this account at the sen‐
tencing hearing, testifying that he had borrowed only $500
from Solano, and on only one occasion, and had repaid the
loan a week later.

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No. 12‐2142 3
The dispute over the amount extorted is actually beside
the point. The two‐level guidelines enhancement in extortion
cases is based on the greater of the amount demanded or the
loss to the victim, U.S.S.G. § 2B3.2(b)(2), and Hacha had de‐
manded $75,000, plus a new Chrysler, from Tenorio. And
anyway extortionate methods such as threats of violence are
not excused just because they are employed to collect a debt,
e.g., United States v. Brika, 487 F.3d 450, 453–54 (6th Cir.
2007); United States v. Teague, 443 F.3d 1310, 1311–13 (10th
Cir. 2006); see also United States v. Escobar‐Posado, 112 F.3d
82, 82–83 (2d Cir. 1997) (per curiam), though such extortion
is more commonly challenged under a provision of the fed‐
eral criminal code that specifically forbids “collection of ex‐
tensions of credit by extortionate means,” 18 U.S.C. § 894,
than under, as in this case, the general extortion statute.
The judge added another three offense levels to Hacha’s
base offense level on the ground of his “demonstrated ability
to carry out” his threat to harm Solano and the others.
U.S.S.G. § 2B3.2(b)(3)(B) provides that “if (i) the offense in‐
volved preparation to carry out a threat of (I) death; (II) seri‐
ous bodily injury; or (III) kidnapping … or (ii) the partici‐
pant(s) otherwise demonstrated the ability to carry out a threat
described in any of subdivisions (i)(I) through (i)(V), increase
[the offense level] by 3 levels” (emphasis added).
The record contains threats against Solano, her children,
Tenorio, and Tenorio’s parents. But Solano was not a hos‐
tage; she was Hacha’s accomplice. Her children were in no
danger either. So far as she and the children were concerned,
Hacha’s only “demonstrated ability” was to enlist Tenorio’s
former girlfriend in a scheme of phony threats.

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4 No. 12‐2142
Some meaning must be given to the word “demonstrat‐
ed” in the guideline, as otherwise quite harmless threats
would earn the three‐level enhancement. Most people have
the physical ability to injure a person, but not all threats to
injure earn the enhancement. But surprisingly we’ve found
only one published appellate decision that deals with the
meaning of “demonstrated ability” to carry out threats: Unit‐
ed States v. Mussayek, 338 F.3d 245, 252–53 (3d Cir. 2003).
We’ve found two other published decisions in which the en‐
hancement was imposed, but in both the ability to carry out
the threats was amply demonstrated. In United States v. Al‐
cala, 352 F.3d 1153, 1154 (7th Cir. 2003), the defendant, in an
attempt to collect a drug debt, entered an apartment, hit an
occupant with his gun, and threatened to kill everyone pre‐
sent. In United States v. Panaro, 266 F.3d 939, 946 (9th Cir.
2001), the defendant and his coconspirators, intending to
force a loan shark to give up his business, threatened him
with a show of force at his auto shop. See also United States
v. Genua, 273 Fed. App’x 8, 9 (2d Cir. 2008) (“The imposing
size, demeanor, and reputation of the defendant and his co‐
conspirators, in the context of a turf battle between orga‐
nized crime rings, communicated to the victim their ability
and willingness to inflict serious bodily injury if the victim
did not acquiesce to their demands.”).
The defendant in Mussayek argued that since his threats
had been made in the course of a sting, there was no way he
could have carried them out. That was true, but, the court
correctly found, irrelevant. The purpose of a sting is to ar‐
range for the target to commit a crime (usually an attempt)
in circumstances in which the police can prevent the target
from doing any actual harm. In a common type of drug
sting, for example, he’s induced by a police informant or

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No. 12‐2142 5
undercover agent to attempt to rob a nonexistent stash
house.
Hacha’s brief in opposition to his lawyer’s Anders motion
challenges none of the evidence that he had had a demon‐
strated ability to carry out the threats that he uttered to Ten‐
orio. Because he prepared the opposition without a lawyer’s
assistance we won’t treat this omission as a waiver. United
States v. Wagner, 103 F.3d 551, 552 (7th Cir. 1996); United
States v. Flores, 632 F.3d 229, 233 (5th Cir. 2011); United States
v. Youla, 241 F.3d 296, 301 (3d Cir. 2001). Anyway the lawyer
raised the issue in the Anders brief, which is enough to pre‐
serve it. United States v. Wagner, supra, 103 F.3d at 553.
Although we discount the threats against Solano and her
children, Hacha does appear to have had a demonstrated
ability (within the meaning of the guideline) to carry out his
threats against Tenorio and Tenorio’s parents. He told Teno‐
rio: “Then after I am done with them [Solano and her chil‐
dren], it will be you. I am going to keep you alive in a bag
and in a box and I am going to take you to the D.F. [Distrito
Federal—Mexico City.] Wherever your family is at, where
your mom and your dad are at … I am going to make them
suffer.” We know that Hacha knew Tenorio’s address and
other personal information—he wrote it all down for anoth‐
er detainee at the jail in which Hacha was held awaiting tri‐
al, as we’re about to see. Also Tenorio testified at Hacha’s
sentencing hearing that Hacha knew where Tenorio’s par‐
ents lived in Mexico City: “He told me that my parents—my
father’s name and my mother’s name … . He g[a]ve me the
address and the color [of their house] and everything.” The
facts are close to the example of demonstrated ability in Ap‐
plication Note 6 to the extortion guideline: “a threat to kid‐

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6 No. 12‐2142
nap a person accompanied by information showing study of
that person’s daily routine.” Hacha’s failure to deny demon‐
strated ability to carry out his threats, though not a waiver,
corroborates the evidence of that ability.
He challenges the district judge’s decision not to award
him a sentencing discount for accepting responsibility for his
criminal activity. See U.S.S.G. § 3E1.1. He admitted to having
engaged in the activity and had cooperated with the FBI and
the probation officer who prepared the presentence report.
But he also obstructed justice. See U.S.S.G. § 3C1.1. That oth‐
er detainee we mentioned testified that Hacha had offered to
pay him to have Tenorio either intimidated into not testify‐
ing against Hacha or kidnapped and taken to Mexico. Hacha
denied having attempted to prevent Tenorio from testifying,
but faced with conflicting testimony the sentencing judge
was entitled to believe the informant over the extortionist.
The judge was ultimately swayed by a note that the inform‐
ant had given the FBI. It was in Hacha’s handwriting and
contained Tenorio’s name, cell phone number, and address,
plus information about his employer.
Hacha had, however, abandoned his effort to obstruct
justice before he pleaded guilty, and we said in United States
v. Lallemand, 989 F.2d 936, 938 (7th Cir. 1993), that there can
be “the act of obstruction or attempt to obstruct at time t,
and the acceptance of responsibility at time t + 1. There is no
logical or practical incompatibility, and no barrier in the lan‐
guage of the guidelines.” But Hacha didn’t voluntarily aban‐
don his attempt to obstruct justice; the abandonment came
only after the jail mate whom he had tasked with removing
Tenorio as a prosecution witness reported the attempt to the
FBI. “We do not reward defendants [with the acceptance of

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No. 12‐2142 7
responsibility discount] for failed attempts to obstruct jus‐
tice.” United States v. Black, 636 F.3d 893, 901 (7th Cir. 2011).
Moreover, Hacha told the judge at the hearing at which
he changed his plea from not guilty to guilty that “we never
received—we didn’t receive a dollar that day or prior to that
day from [Tenorio],” though the government had shown
that he’d received nearly $55,000. Application Note 1(A) to
U.S.S.G. § 3E1.1 states that “a defendant who falsely denies
… relevant conduct that the court determines to be true has
acted in a manner inconsistent with acceptance of responsi‐
bility.” That’s Hacha. See United States v. Kumar, 617 F.3d
612, 636 (2d Cir. 2010); United States v. Lessner, 498 F.3d 185,
201 (3d Cir. 2007).
In general a defendant who obstructs justice must, to ob‐
tain the discount nevertheless, show either that the obstruc‐
tion was trivial, putting the government to no added ex‐
pense (in United States v. Buckley, 192 F.3d 708, 711 (7th Cir.
1999), we gave the example of a defendant who lies about
having possessed an illegal weapon but tenders a complete
confession the next day), or that he had taken more than the
routine steps that, in the absence of such obstruction, nor‐
mally earn the discount. See, e.g., United States v. Gonzalez,
608 F.3d 1001, 1008 (7th Cir. 2010); United States v. King, 506
F.3d 532, 536 (7th Cir. 2007) (per curiam); United States v. So‐
to, 660 F.3d 1264, 1269 (10th Cir. 2011). The Eighth Circuit
has identified a “number of non‐exclusive factors” that justi‐
fy a downward adjustment for acceptance of responsibility
despite an obstruction of justice, such as whether the ob‐
struction was a single incident early in the investigation,
whether the defendant voluntarily abandoned the obstruc‐
tion, and whether he admitted it. United States v. Hutterer,

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8 No. 12‐2142
706 F.3d 921, 925 (8th Cir. 2013); United States v. Smith, 665
F.3d 951, 957–58 (8th Cir. 2011).
Only the Ninth Circuit has gone so far as to hold that a
routine showing of acceptance of responsibility can wipe out
a nontrivial obstruction of justice: “we hold the relevant in‐
quiry for determining if a case is an extraordinary case [war‐
ranting the acceptance of responsibility discount despite an
obstruction of justice] is whether the defendant’s obstructive
conduct is not inconsistent with the defendant’s acceptance of
responsibility. Cases in which obstruction is not inconsistent
with an acceptance of responsibility arise when a defendant,
although initially attempting to conceal the crime, eventually
accepts responsibility for the crime and abandons all at‐
tempts to obstruct justice.” United States v. Hopper, 27 F.3d
378, 383 (9th Cir. 1994) (emphasis in original). The obstruc‐
tion of justice in Hopper was not trivial. The defendant had
“burned the negotiable instruments obtained and the dis‐
guises used in the robbery,” and the day after an accom‐
plice’s arrest had “attempted to buy a false alibi for $20,000,
and he hid robbery proceeds in a storage unit, later moving
them to another unit.” Id. at 381.
We have rejected the Ninth Circuit’s position, remarking
in United States v. Buckley, supra, 192 F.3d at 711, that “the
fact that a defendant having done everything he could to ob‐
struct justice runs out of tricks, throws in the towel, and
pleads guilty does not make him a prime candidate for reha‐
bilitation.”
MOTION G RANTED AND A PPEAL D ISMISSED.

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