In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3333
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOSE F IGUEROA, also known as
JOSE F IGUEROA-M ALDANADO ,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 08-CR-217—Rudolph T. Randa, Judge.
A RGUED A PRIL 20, 2010—D ECIDED S EPTEMBER 13, 2010
Before F LAUM, W OOD , and E VANS, Circuit Judges.
W OOD , Circuit Judge. There was little out of the ordinary
in Jose Figueroa’s trial and conviction. Figueroa was
charged with leading a multimillion-dollar drug con-
spiracy in Wisconsin from 2005 to 2008. A jury con-
victed him of one count of conspiracy to possess
cocaine with the intent to distribute it and one count
of distribution of cocaine. Although he challenges one
2 No. 09-3333
evidentiary decision in this appeal, we find no merit in
that argument.
Figueroa’s sentencing was another matter. The district
court sentenced Figueroa to 235 months’ imprisonment.
This represented the low end of Figueroa’s advisory
guidelines range, and so on its face there is nothing
remarkable about his sentence either. But the process
the district court used to get there—in particular, its
extraneous and inflammatory comments during the
sentencing hearing—cast doubt on the validity of the
sentence. During the hearing, the district court
digressed to discuss Figueroa’s native Mexico, the im-
migration status of Figueroa and his sisters, and the
conditions and laws in half a dozen other countries—not
to mention unnecessary references to Hugo Chávez,
Iranian terrorists, and Adolf Hitler’s dog. We have no
way of knowing how, if at all, these irrelevant consider-
ations affected Figueroa’s sentence. We therefore must
remand, to ensure that the district court’s choice of sen-
tence was based only on the criteria that Congress has
authorized. See 18 U.S.C. § 3553.
I
In late 2007, the government became aware of
Figueroa’s involvement in a large drug conspiracy in
and around the state of Wisconsin. Figueroa, it dis-
covered, was the head of an organization that distributed
millions of dollars of cocaine over a period of years.
The government’s key source of information was
Rodney Smith. Smith dealt drugs for Figueroa before
No. 09-3333 3
Smith’s incarceration in 2005. After his release the next
year, Smith agreed to cooperate with the government;
his cooperation was to include providing the govern-
ment with information about Figueroa’s drug business.
This arrangement bore fruit when Figueroa reached out
to Smith in 2008 to resume Smith’s role in Figueroa’s
operation. Smith was in contact with Figueroa and
his associates in the spring of 2008, and under the
watchful eyes of the government, he received cocaine
to distribute and made payments back to Figueroa’s crew
for the drugs he presumably had sold. Smith wore a
recording device during a number of these encounters,
and the devices picked up conversations with Figueroa
during which Figueroa made inculpatory statements
about his role in the drug conspiracy.
The controlled communications, purchases, and pay-
ments yielded enough for the government to go after
Figueroa’s drug operation. Officers arrested him outside
his home on July 31, 2008, pursuant to an arrest war-
rant issued earlier that week. The officers commanded
Figueroa to get on the ground, advised him of his
Miranda rights, and placed him in handcuffs. During
this encounter, at least one of the officers had his
gun drawn. Miguel Correa, one of the officers on the
scene, then explained to Figueroa that he was arrested
and asked for permission to enter his home. Figueroa
agreed. Once inside, one of the officers asked Figueroa’s
wife if they could sweep the residence to determine
if anyone else was there. As one officer moved through
the home, another obtained Figueroa’s verbal and written
4 No. 09-3333
consent to search the entire residence. During this time,
Figueroa was seated uncuffed at the kitchen table.
The search of Figueroa’s home turned up $54,540 in
cash. (Later, Figueroa filed a pretrial motion to sup-
press this evidence.) Separately, officers recovered drugs
linked to Figueroa at the home of one of his associates.
In addition, at trial, Smith and Figueroa’s co-defendant,
Lilliam Torres, offered testimony that linked Figueroa
to the drug conspiracy.
Figueroa was convicted of one count of conspiracy to
possess with the intent to distribute five or more kilo-
grams of cocaine, 21 U.S.C. § 841(a)(1) & (b)(1)(A) and
§ 846, and one count of distribution of cocaine, id.
§ 841(a)(1) & (b)(1)(C). The district court sentenced
Figueroa to 235 months’ imprisonment. Figueroa appeals,
challenging the district court’s refusal to suppress the
fruits of the search and his sentence.
II
We begin with the search. Before trial, Figueroa asked
the district court to suppress the evidence found in his
home because, in his view, the police coerced him to
consent to their search of the premises once they had
entered. A magistrate judge rejected this argument,
concluding that Figueroa voluntarily consented to the
search. The district court adopted the magistrate judge’s
ruling. On appeal, Figueroa has changed his argument
slightly; he now contends that he never consented to the
officers’ initial entry into his home. This new argument
fares no better than the previous iteration.
No. 09-3333 5
Typically, on challenges to evidentiary decisions, we
review factual determinations for clear error and legal
questions de novo. If a party filed a motion to suppress
in the district court but raises new arguments for sup-
pression on appeal, however, we review for plain error
if the defendant can show good cause for failing to
make those arguments in the district court. See United
States v. Murdock, 491 F.3d 694, 698 (7th Cir. 2007) (citing
F ED. R. C RIM . P. 12(e) and United States v. Johnson, 415
F.3d 728, 730-31 (7th Cir. 2005)); see also United States v.
Acox, 595 F.3d 729, 732 (7th Cir. 2010) (asking, in the
absence of a district-court decision on good cause, “if
a motion for relief had been made and denied, [whether]
the district court would have abused its discretion in
concluding that the defense lacked good cause”).
Figueroa’s argument fails at every turn. First, he has not
established good cause for failing to argue in the
district court that his consent to the officers’ initial
entry was involuntary. Second, even if he passed that
threshold, Figueroa is unable to establish that the
district court erred—let alone plainly erred—in per-
mitting the government to introduce evidence obtained
from his home. Consent is a well-established exception
to the warrant requirement, Schneckloth v. Bustamonte,
412 U.S. 218, 219 (1973), and we have held that an
arrested, handcuffed suspect is capable of giving vol-
untary consent to the search of his home, United
States v. Bernitt, 392 F.3d 873, 876-77 (7th Cir. 2004).
Figueroa conceded during cross-examination at the evi-
dentiary hearing that he had consented to both the
initial entry and the fuller search inside:
6 No. 09-3333
Q: After you were arrested [outside of your home] did
the officers ask you if they could come into your
house?
A: Yes.
Q: Which officer asked you if they could enter your
house?
A: Correa.
Q: Correa. And what did you say to Officer Correa?
A: That yes.
Q: And then what happened after you—so you gave
him permission, correct?
A: Yes.
Q: And then what happened?
A: He asked permission to go in and I told him to
knock, that my wife would open the door for him.
Q: Is that what happened?
A: Yes.
If anything here is plain, it is Figueroa’s concession.
Officer Correa also testified that Figueroa consented to
the entry.
Nothing in the record suggests good cause for
Figueroa’s failure to raise this point earlier; nor do we
detect any plain error. We conclude that the evidence
was properly admitted; because Figueroa does not chal-
lenge any other aspect of his conviction, we affirm the
guilty verdict.
No. 09-3333 7
III
Figueroa also challenges his sentence. Defendants
may bring challenges to both the sentencing procedure
and the resulting sentence’s substantive reasonableness.
United States v. Cooper, 591 F.3d 582, 590-91 (7th Cir.
2010). Figueroa raises only procedural objections.
In cases such as Gall v. United States, 552 U.S. 38 (2007),
and Rita v. United States, 551 U.S. 338 (2007), the
Supreme Court established a framework for sentencing
in the federal courts. Briefly, the district court begins
by calculating the advisory guideline range, and then
it applies the sentencing factors set out in 18 U.S.C.
§ 3553(a) to arrive at a reasonable sentence. District
courts must explain their sentencing decisions to
permit meaningful appellate review.
In this case, the sentencing transcript reveals an
extended discussion of topics that are both outside of
the record and extraneous to any proper sentencing
consideration. In our view, the district court’s lengthy
and disconnected lecture saps any confidence we could
have in the portions of the hearing that hewed to the
§ 3553(a) factors.
We do not think it is necessary to rehash every detail
of Figueroa’s sentencing hearing; a few examples are
enough to illustrate what went wrong. Figueroa is of
Mexican descent, and the district court made a number
of comments about Mexico and its perception of
Mexico’s contribution to drug and immigration issues
in the United States. “The southwest is being over-
whelmed,” the judge remarked, and he went on to
8 No. 09-3333
lament the factors that he believes motivate immigration
to the United States. The judge also commented on the
immigration status of Figueroa, his wife, and his
three sisters. At various points, he lashed out at illegal
immigration, occasionally referring to “you people” or
“those people.” (Figueroa understood these comments
to refer to persons of Mexican origin, although it is
possible that the district court was referring to illegal
immigrants or immigrants more generally.)
The sentencing transcript reveals an odd focus on
nation-states and national characteristics. The district
court linked the drug trade to Mexico, then to Colombia
and Venezuela, and then to Iranian terrorists through
the person of Venezuelan President Hugo Chávez. The
judge commented that respect for the rule of law dif-
ferentiates the United States from Mexico, Venezuela,
Iran, and Pakistan. Turning to punishment, he remarked
that Figueroa should be happy that he was headed to
an American—rather than a Mexican or Turkish—prison,
and that Figueroa’s conduct could have resulted in exe-
cution had it occurred in Malaysia or Thailand.
The transcript also reveals the district court judge’s
use of colorful—and inappropriate—analogies to dis-
pense with arguments that he did not appreciate. Re-
jecting Figueroa’s wife’s comment that the sentence
was unfair, he said that “[i]t reminds me of . . . the person
who killed his parents . . . asking [the judge] to have
sympathy for him because he’s an orphan.” The judge
appears to have been referring to the “classic definition
of chutzpa,” L EO R OSTEN , T HE JOYS OF Y IDDISH 94 (1971),
but this is a term that does not apply to a wife’s assertion
No. 09-3333 9
that her husband’s incarceration will harm the family.
Later, the judge discounted Figueroa’s claim that he was
a good family man: “even Adolf Hitler was admired by
his family. Adolf Hitler loved his dog. Yet he killed
six million Jews.”
We understand that sentencing is an individual, and
at times idiosyncratic, process. And we recognize that
the district court judge may have been frustrated by
Figueroa’s lack of remorse and his arguments about
the unfairness of his predicament. But this does not
excuse the court from its duty to ensure a fair process.
At sentencing, the district court “must adequately
explain the chosen sentence to allow for meaningful
appellate review and to promote the perception of fair
sentencing.” Gall, 552 U.S. at 50. We conclude that the
district court fell short of this requirement. It is true
that the district court made references to the § 3553(a)
factors and to the arguments based on them that defense
counsel raised, but the litany of inflammatory remarks
undermined anything else that the court said during
the hearing. Although we typically do not require an
exhaustive explanation when the court chooses a sen-
tence within the recommended guideline range, see
United States v. Dean, 414 F.3d 725, 729-30 (7th Cir. 2005),
the fact that Figueroa received a within-guidelines sen-
tence does not make up for these inflammatory state-
ments. We have no way of knowing how, if at all, these
extraneous considerations influenced Figueroa’s sen-
tence. It is no answer to say that the judge chose a guide-
lines sentence and thus all was well; for all we know,
setting his private views to one side the court may
have thought that a below-guidelines sentence was ap-
10 No. 09-3333
propriate. We are unpersuaded by the government’s
argument that the discussion of the Mexican drug wars
was sufficiently germane to the underlying conduct to
support the sentence. If these were the only extraneous
comments, then we might give the district court the
benefit of the doubt. They were not. We conclude that
the district court’s process was so far out of bounds
that Figueroa is entitled to resentencing. We emphasize,
however, that we are taking no position on the sub-
stantive reasonableness of the 235-month sentence that
Figueroa received.
For completeness, we note that Figueroa has framed
his challenge as an allegation of national-origin discrim-
ination. See, e.g., United States v. Kaba, 480 F.3d 152, 156-58
(2d Cir. 2007); see also U.S.S.G. § 5H1.10 (forbidding
consideration of national origin in sentencing). Although
the district court may have made one or two com-
ments that overemphasized national origin, this sen-
tencing hearing had problems across the board. We need
not decide if these references to national origin, standing
alone, would require reversal.
Figueroa’s brief in this court also has traces of a chal-
lenge to the district court’s drug-quantity determination,
see U.S.S.G. § 2D1.1, insofar as it raises questions about
the credibility of witness Rodney Smith. We find this
argument to be insufficiently developed to merit con-
sideration. See, e.g., Trentadue v. Redmon, 2010 WL 3239397,
at *5 (7th Cir. Aug. 18, 2010). Even if it had been properly
developed, we find enough in the record to support the
drug-quantity finding. Indeed, during oral argument,
counsel for Figueroa conceded that the district court
No. 09-3333 11
adopted the findings in the presentence investigation
report, including its conclusion about the quantity of
drugs connected with Figueroa’s relevant conduct. Al-
though the district court could have spent more time
discussing the drug quantity and less time on the ex-
traneous topics reviewed above, we see no reason to
upset its decision that Figueroa was responsible for
more than 50 kilograms of cocaine.
IV
Figueroa challenged an evidentiary decision and his
sentence. We have no problem with the district court’s
conclusion that Figueroa consented to the search of
his home, and we therefore see no error in the court’s
decision to admit the evidence found by the police. As
for his sentence, we conclude that the evidence was
sufficient to establish the drug quantity and the orig-
inal guidelines calculation. We do not disturb those
conclusions. But we find that resentencing is necessary
to evaluate those factors that Congress has told us
should inform the length of the sentence. See 18 U.S.C.
§ 3553(a). We would not lightly interfere with the sen-
tencing process because of extraneous comments during
a sentencing hearing. Here, however, the comments
were utterly out of bounds, and we have no way of as-
sessing how these improper observations affected the
district court’s final choice of a sentence.
For these reasons, we A FFIRM Figueroa’s conviction,
V ACATE his sentence, and R EMAND for further pro-
ceedings consistent with this opinion. On remand,
Circuit Rule 36 shall apply.
12 No. 09-3333
E VANS, Circuit Judge, concurring. Judges sometimes
get carried away and say things they should not say.
I agree with my colleagues that the judge in this case
said things that he should not have said. And what
was said, I agree, marred the procedural aspects of
Figueroa’s sentencing proceeding.
Having said that, however, I do not think that what the
judge actually did, as opposed to what he said, demon-
strated an intent to lay the wood to Figueroa or other-
wise treat him unfairly. The sentence the judge imposed,
which was at the lowest point of Figueroa’s advisory
guideline range, looks to be reasonable. If the judge
truly wanted to stick it to Figueroa, he could have said
nothing out of the ordinary and imposed a sentence,
still within the guideline range, that was 58 months
longer than the one actually ordered. With that being
the case, we might very well have a no harm-no foul
situation. Yet Figueroa is entitled, procedurally, to a
cleaner hearing than the one he got so I join my col-
leagues in returning this case to a new judge for a
fresh hearing.
9-13-10