In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3647
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C RUZ S AENZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 07 CR 00125—Sarah Evans Barker, Judge.
A RGUED A PRIL 9, 2010—D ECIDED O CTOBER 13, 2010
Before P OSNER, F LAUM, and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Cruz Saenz received a whop-
ping 293-month sentence for transporting drug money
on one single occasion. The district court seemed to
think that Saenz was involved in the conspiracy
beyond this single incident and denied Saenz’s request
for a minor participant reduction as a result. Finding
no evidence in the record of any involvement beyond
the single transport of money, we remand for the
district court to reconsider whether Saenz should
2 No. 09-3647
receive the minor role adjustment. Saenz also argues
that the twenty-month delay between his indictment
and trial violated his constitutional right to a speedy
trial. Because nearly all of the delay is attributable to
continuance requests by Saenz or his co-defendants,
we reject the speedy trial challenge. Finally, we find no
error in the district court’s imposition of an obstruction
of justice enhancement, as it was justified in concluding
that Saenz willfully lied at trial about whether he knew
the money he was transporting was drug money.
I. BACKGROUND
This case involved a large-scale cocaine distribution
network based out of Juarez, Mexico. Emigdio Martinez,
“Alex,” Jesus Manuel Fierro-Mendez, and another
person indicted as John Doe lived in Juarez, where they
obtained cocaine and arranged cocaine shipments out
of Mexico to locations in the United States including
Indianapolis. Co-conspirators in El Paso, Texas, ar-
ranged for truck drivers to make cocaine deliveries to
Indianapolis. Manuel Mascorro was the primary Indiana-
polis connection to the conspiracy. Mascorro and his
associates offloaded the cocaine in Indianapolis and
prepared it for resale. Mascorro then distributed the
cocaine to suppliers in Indianapolis and Ohio, and he
delivered some of the cocaine proceeds to truck drivers
to pay his cocaine sources in Mexico and Texas. This
process was repeated many times.
Cruz Saenz, now forty-four years old, was a long-
haul truck driver who made about $43,000 per year. His
No. 09-3647 3
brief involvement in the network began on August 29,
2007, when Mascorro asked “Alex” for a truck driver
to deliver money because Mascorro owed him $500,000
for drugs that had been fronted. The next day, Saenz
called Mascorro at Alex’s request, and Saenz and
Mascorro arranged a time to meet. Saenz met Mascorro
and picked up a duffel bag containing money, and then
he began the drive toward El Paso. Mascorro did not
tell Saenz how much money the bag contained. Mascorro
also did not tell Saenz that he was now cooperating
with law enforcement, and officers soon arrested Saenz.
On September 26, 2007, Saenz and eighteen other co-
defendants were indicted for conspiracy to distribute
cocaine. Saenz’s trial began twenty months later. A jury
convicted him of conspiring to distribute more than 5
kilograms of cocaine, in violation of 21 U.S.C. § 846. The
district court sentenced Saenz to 293 months’ imprison-
ment, the high end of the advisory guidelines range,
and he appeals.
II. ANALYSIS
A. Speedy Trial Challenge
Saenz was indicted on September 26, 2007. His trial
began on May 11, 2009, about twenty months after he
was indicted, and he maintains that this delay infringed
on his Sixth Amendment right to a speedy trial. See
U.S. Const. amend. VI (“In all criminal prosecutions,
the accused shall enjoy the right to a speedy and public
trial. . . .”). Although Saenz raised his constitutional
4 No. 09-3647
speedy trial argument in his opening brief, he did not
argue a violation of the Speedy Trial Act until his
reply brief. It was too late to raise the statutory chal-
lenge then. United States v. Stevens, 380 F.3d 1021, 1025
(7th Cir. 2004); United States v. Elizalde-Adame, 262 F.3d
637, 640 (7th Cir. 2001). We therefore consider only
his constitutional speedy trial argument, although we
note that it is unlikely that a statutory claim would fare
any better.
Following the Supreme Court’s guidance in Barker v.
Wingo, 407 U.S. 514 (1972), we evaluate constitutional
speedy trial claims by assessing several factors: (1) whether
the delay was uncommonly long; (2) whether the gov-
ernment or the defendant is more to blame for the
delay; (3) whether the defendant asserted his right to a
speedy trial; and (4) whether the defendant suffered
prejudice as a result. Barker, 407 U.S. at 530; see United
States v. Oriedo, 498 F.3d 593, 597 (7th Cir. 2007).
“The first factor, the length of delay, acts as a triggering
mechanism; unless a presumptively prejudicial amount
of time elapsed in the district court, it is unnecessary
to conduct a searching analysis of all the factors.” Oriedo,
498 F.3d at 597. We have found that delays of one year
are presumptively prejudicial. See id.; United States v.
White, 443 F.3d 582, 589 (7th Cir. 2006). In this case, twenty
months passed between the original indictment and
the beginning of the trial. This length of time is there-
fore sufficient to trigger our review of the other Barker
factors. Before turning to the other considerations, we
point out that this was a large-scale, complex conspiracy
No. 09-3647 5
case with nineteen co-defendants. That is relevant be-
cause the length of delay that can be tolerated for such
a case is longer than it is for prosecutions of simple
street crimes. See Barker, 407 U.S. at 530; United States
v. Koller, 956 F.2d 1408, 1413 (7th Cir. 1992).
The second factor, the reason for the delay, weighs in
the government’s favor. The government moved for the
first continuance in the case, from November 8, 2007
through January 28, 2008. The reason it did so, though, is
that Saenz’s first appearance in the United States
District Court for the Southern District of Indiana was
less than thirty days before the scheduled trial date,
and Saenz had not waived his statutory right to a trial
more than thirty days after his initial appearance. The
government filed another motion to continue in Decem-
ber 2008 for similar reasons after a co-defendant was
apprehended.
The bulk of the continuance requests, however, came
from defense counsel. Saenz’s counsel twice filed his
own motions to continue. He filed the first motion on
September 12, 2008, asserting that plea negotiations
had been complicated and additional time was needed to
finalize the terms of a plea agreement. The court granted
the request and rescheduled the trial for December 15,
2008. Saenz’s counsel filed another request for a continu-
ance on January 15, 2009, stating that he had another trial
that conflicted with this case’s scheduled trial date. The
court granted the motion and rescheduled the trial for
May 11. In addition, Saenz twice joined motions to con-
tinue filed by a co-defendant on behalf of Saenz and the
6 No. 09-3647
other defendants. And on three other occasions, a co-
defendant filed a request for a continuance, and neither
Saenz nor any other defendant objected. The continu-
ance requests made solely by his co-defendants are at
best neutral in our analysis and are not the fault of the
government. See Oriedo, 498 F.3d at 599.
The third factor is whether the defendant asserted his
right to a speedy trial. The failure to assert the right
makes it hard for a defendant to establish that he was
denied a speedy trial. Barker, 407 U.S. at 532. Saenz’s
counsel never filed any papers complaining about the
lack of a speedy trial. On his own, Saenz sent a motion
to the district court on October 24, 2008 requesting trial
“within 70 days pursuant to Amendment VI.” The
court entered the motion in the record but stated it
would not act upon a pro se motion filed by a defendant
with legal representation. Saenz also wrote a letter to
the court on March 13, 2009 complaining about the con-
tinuances in his trial and the lack of contact with his
attorney.
The final Barker factor assesses the prejudice to the
defendant. The Supreme Court has instructed that preju-
dice should be assessed in light of interests the speedy
trial right was designed to protect, namely: “(i) to pre-
vent oppressive pretrial incarceration; (ii) to minimize
anxiety and the concern of the accused; and (iii) to limit
the possibility that the defense will be impaired.” Barker,
407 U.S. at 532. Saenz spent the time before trial in cus-
tody. We have stated that “[s]ignificant pretrial incarcer-
ation may support a presumption of prejudice, but this
No. 09-3647 7
prejudice ‘unenhanced by tangible impairment of the
defense function and unsupported by a better showing
on the other factors than was made here, does not alone
make out a deprivation of the right to [a] speedy trial.’ ”
White, 443 F.3d at 591 (quotations omitted). There is no
claim that any of Saenz’s witnesses became unavailable
because of the delay, or that any witnesses’ memories
had faded or that his defense was otherwise tangibly
impaired.
Taking these factors together, we conclude that Saenz’s
Sixth Amendment right to a speedy trial has not been
violated. The length of the delay was not extreme for a
complex multi-defendant conspiracy case. Although we
recognize that Saenz attempted to assert his right to a
speedy trial, that does not outweigh the significant fact
that Saenz and his co-defendants were responsible for
nearly all of the delay in this case. Moreover, Saenz did
not suffer any tangible impairment of his defense. The
balance of the Barker factors leads us to reject his speedy
trial argument.
B. Obstruction of Justice Enhancement
Saenz also takes issue with the enhancement he re-
ceived for obstruction of justice. U.S.S.G. § 3C1.1
provides for a two-level enhancement when a defendant
“willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with
respect to the investigation, prosecution, or sentencing
of the instant offense of conviction.” The district court
imposed the enhancement after concluding that Saenz
8 No. 09-3647
willfully lied at trial about his knowledge of the source
of the money he was transporting.
The obstruction of justice enhancement “is not
intended to punish a defendant for the exercise of a
constitutional right.” U.S.S.G. § 3C1.1 cmt. n.2. Therefore,
when considering whether to apply § 3C1.1, “the court
should be cognizant that inaccurate testimony or state-
ments sometimes may result from confusion, mistake,
or faulty memory and, thus, not all inaccurate testimony
or statements necessarily reflect a willful attempt to
obstruct justice.” Id. Moreover, a defendant’s testimony
may be truthful, but the jury might still find it insuf-
ficient to excuse criminal liability. United States v.
Dunnigan, 507 U.S. 87, 95 (1993).
The district court was cognizant of these parameters
in this case, and it did not impose the enhancement
simply because the jury found Saenz guilty. Rather, it
made clear findings that Saenz had willfully lied at trial
about an important point. See United States v. Johnson,
612 F.3d 889, 893 (7th Cir. 2010). Special Agent
Raymond Rojas of the Federal Bureau of Investigation
testified that he interviewed Saenz in El Paso on Octo-
ber 16, 2007, after his arrest. At that time, Saenz told
Agent Rojas that he had met a “Camilo” in a bar in
Juarez, Mexico, about one week before his trip to Indiana-
polis, and that Camilo had asked him to pick up
money from someone in Indianapolis. Agent Rojas asked
Saenz what he meant by “money,” and Saenz replied,
“well, you know . . . you know.” When Agent Rojas
asked for further clarification, Saenz replied, “It was
drug money, dope money.”
No. 09-3647 9
At trial, Saenz acknowledged that he told Agent Rojas
that the money came from drug proceeds, but he testi-
fied that he did not know that fact until after his ar-
rest. Saenz was explicitly asked at trial, “When you
picked [the money] up, did you know it was drug pro-
ceeds?” To that question, he responded “no.” The district
court was justified in concluding that by responding
this way, Saenz willfully lied at trial about his knowl-
edge of the money’s nature. We find no error in its
decision to impose the obstruction of justice enhancement.
C. Minor Participant Reduction
Saenz received a 293-month sentence for transporting
drug money on one single occasion. Twenty-four-and-a-
half years was evidently not enough for the government,
as it asked the district judge to impose an even higher
sentence. In light of his limited involvement in the large-
scale conspiracy, Saenz maintains that the district
court erred when it determined that he did not qualify
for a minor participant reduction under U.S.S.G. § 3B1.2.
The United States Probation Office recommended in its
Presentence Investigation Report that Saenz receive the
reduction, which would have resulted in an advisory
guideline range of 135 to 168 months’ imprisonment had
he not had a prior felony drug offense subjecting him
to a statutory mandatory minimum of 240 months. See
21 U.S.C. § 841(b)(1)(A). The government, however,
opposed the reduction, and the district court con-
cluded Saenz was not a minor participant. His resulting
guideline range was 235 (made 240 by virtue of the statu-
10 No. 09-3647
tory minimum) to 293 months. 1 He appeals the denial of
the minor participant reduction.
The United States Sentencing Guidelines provide for
decreases in offense level based upon the role a
defendant plays in the offense. Section 3B1.2 contains
“a range of adjustments for a defendant who plays a part
in committing the offense that makes him substantially
less culpable than the average participant.” U.S.S.G.
§ 3B1.2 cmt. n.3(A). The guideline states:
(a) If the defendant was a minimal participant
in any criminal activity, decrease by 4 levels.
(b) If the defendant was a minor participant in
any criminal activity, decrease by 2 levels.
In cases falling between (a) and (b), decrease by
3 levels.
U.S.S.G. § 3B1.2. A defendant must prove his entitlement
to a role reduction by a preponderance of the evidence,
and we review for clear error the district court’s finding
of fact regarding a defendant’s level of participation in
1
The significant difference between the advisory guideline
ranges occurs because the impact of the minor participant
determination on the offense level in this case was twofold. A
minor participant receives a two-level reduction under § 3B1.2.
In addition, the base offense level decreases by three levels
for a defendant who receives a § 3B1.2 mitigating role adjust-
ment where the base offense level by virtue of the drug
quantity would have been 34, as it was here. See U.S.S.G.
§ 2D1.1(a)(3)(B)(ii) (2008).
No. 09-3647 11
an offense. United States v. Gonzalez, 534 F.3d 613, 615
(7th Cir. 2008).
Saenz does not argue that he should have received the
four-level “minimal” participant reduction, which “is
intended to cover defendants who are plainly among
the least culpable of those involved in the conduct of a
group.” U.S.S.G. § 3B1.2 cmt. n.4. Instead, Saenz argues
only that he should have received the two-level “minor”
participant reduction. A “minor” participant is one “who
is less culpable than most other participants, but whose
role could not be described as minimal.” Id. cmt. n.5. The
minor participant determination requires the court to
“weigh[ ] the totality of the circumstances” and is “heavily
dependent on the facts of the particular case.” Id. cmt.
n.3(C); see United States v. Hill, 563 F.3d 572, 577 (7th
Cir. 2009).
When it explained why it was denying Saenz the
minor role adjustment, the district court twice stated
that it was clear that Saenz was far more than a courier.
It also said that Saenz was a “major participant” in the
conspiracy and that “[t]he evidence established a much
wider participation by Mr. Saenz in this ongoing con-
spiracy.” But there is no evidence in the record that
Saenz was involved in this conspiracy on more than
one solitary occasion, or that his involvement was any-
thing other than merely transporting money. Mascorro,
who coordinated the organization’s distribution out of
Indianapolis, testified for the government at trial, and
he said he had never met or talked to Saenz before the
time in question. And that Saenz was entrusted with
12 No. 09-3647
$500,000 in cash, certainly no small amount of money,
does not mean that he had any involvement in the con-
spiracy beyond transporting money.
In short, the only evidence in the record regarding
Saenz’s involvement in this conspiracy is that he worked
as a long-haul truck driver and that he transported
money for the conspiracy on a single occasion. Not dis-
agreeing that Saenz only engaged in one transaction, the
government emphasizes our decision in United States v.
Mendoza, 457 F.3d 726 (7th Cir. 2006), where we recog-
nized that couriers can play integral roles in drug con-
spiracies. True, but all drug couriers are not alike.
Some are sophisticated professionals who exercise sig-
nificant discretion, others are paid a small amount of
money to do a discrete task. Mendoza itself highlights
the point that all couriers are not the same, and it
does not stand for the proposition that drug couriers
cannot receive minor participant reductions. In Mendoza,
we upheld the denial of a minor participant reduction
where the district court reasoned that defendant
Mendoza’s close relationship with the drug conspiracy
mastermind, and the fact that he was entrusted with
delivering drugs directly to the mastermind, supported
the judge’s conclusion that Mendoza was not a minor
participant. Id. at 728-30. But in contrast to Mendoza,
whom the district judge noted had more than a passing
relationship with the mastermind, the district judge
granted a minor participant reduction to a co-defendant
who was driving the cocaine in a semi-tractor trailer
when arrested. Id. at 728. That co-defendant was a
No. 09-3647 13
mere “intermediary courier,” and the district court
awarded him a role reduction. Id.
As the guideline’s commentary notes, the minor par-
ticipant determination is heavily fact-dependent. See
U.S.S.G. § 3B1.2 cmt. n.3(C). A drug courier should neither
automatically receive nor automatically be precluded
from receiving a role reduction. See Hill, 563 F.3d at 577.
Instead, the controlling standard is whether the de-
fendant is substantially less culpable than the average
participant in the offense. See U.S.S.G. § 3B1.2. When as-
sessing whether a defendant is substantially less
culpable such that he should receive a role reduction, a
defendant’s “role should be compared to that of the
average member of the conspiracy, not with the leaders.”
United States v. Gallardo, 497 F.3d 727, 741 (7th Cir. 2007);
see also United States v. McGee, 408 F.3d 966, 987 (7th Cir.
2005).
The question here is whether this one-time courier is
less blameworthy than the average defendants in this
conspiracy. Saenz was certainly less culpable than the co-
defendants in Juarez who coordinated the cocaine and
shipments from Mexico. And he was less culpable than
Mascorro, who coordinated the operations in Indiana-
polis. Although he did carry a significant amount of
money, unlike many of the others in the conspiracy,
Saenz never touched any drugs or participated in any
negotiations about the price or quantity of the drugs.
Nor did he have an ownership interest in any of the con-
spiracy’s cocaine. Perhaps he could have chosen the
route he wished to take as he left Indianapolis, but he
14 No. 09-3647
had no decision-making authority beyond that. The
district court did not make this assessment, though, as
its premise was that Saenz was more than a courier,
a statement for which we find no record support.
It may be that when the district court said that Saenz
was more than a courier, it meant he was not simply a
totally unknowing mule. One can infer from the wire-
tapped conversations that Saenz knew “Alex”
previously, and, as we said, the district court was not
wrong to conclude that Saenz knew he was transporting
drug money. The fact remains, however, that the only evi-
dence in the record regarding Saenz’s participation in
this conspiracy is that he did so on only one occasion.
The district court’s reasoning suggests that it concluded
otherwise, and that this conclusion was the premise for
its denial of the minor participant adjustment. (We note
that the district court did not reject the minor role reduc-
tion because Saenz was only sentenced for the drug
quantity corresponding to the delivery he made, and this
was proper. See Hill, 563 F.3d at 578 (discussing 2001
amendment to § 3B1.2 providing that a defendant held
accountable only for the conduct in which the defendant
was personally involved and who performs a limited
function in concerted criminal activity is not precluded
from consideration for an adjustment under the guide-
line)). Because the denial was apparently premised on
information not supported by the record, we remand
for reconsideration. See id. at 572 (remanding for recon-
sideration of district court’s denial of role reduction
adjustment where we could not “be confident that its
analysis was guided by the appropriate factors”).
No. 09-3647 15
In doing so, we note again the length of the sentence
Saenz received for transporting drug money on one
occasion. That sentence, again, was 293 months in
prison. And, to repeat, the government sought a higher
sentence. If the government’s position is that 293
months is barely good enough for a one-time courier, we
wonder what it thinks the appropriate sentence would
be for someone who is a large-scale supplier of drugs.
And with sentences like this one for single-time couriers,
why not be a major supplier? If caught, the sentence
is not likely to be much more, and one can certainly
make a whole lot more money in the meantime.
In arguing in its pre-sentence memorandum and at
the sentencing hearing for an even longer sentence, the
government maintained that the advisory guideline
range of 240 to 293 months did not adequately reflect
Saenz’s criminal history. The government’s principal
justification for contending that Saenz’s criminal history
was underrepresented was its assertion that Saenz
came close to qualifying as a career offender, and that
had he been so classified, his guideline range would
have been 360 months to life. The district court ap-
parently agreed with at least some of that premise, as its
statement of reasons for the 293-month sentence states
that “The defendant’s criminal history warrants a sen-
tence at the high end of the guideline range to ensure
adequate deterrence.”
We are not convinced by the government’s position
that Saenz’s criminal history is underrepresented. The
“felony drug offense” that subjected Saenz to a statutory
16 No. 09-3647
minimum of 20 years’ imprisonment, see 21 U.S.C.
§ 841(b)(1)(A), was a 1990 Texas state court conviction
for “illegal investment” for which he received only a
suspended sentence and did not serve any jail time. (The
indictment in the Texas case charged Saenz with know-
ingly financing and investing funds that he knew were
intended to further the possession of over fifty pounds
of marijuana.) Saenz received one criminal history point
for a 1999 felony theft conviction in which Saenz
acquired jeans without permission from the owner (his
sentence was suspended there as well), and one point for
a 2000 illegal dumping misdemeanor for which he was
ordered to pay a fine. He received another point for a
2000 conviction for injury to a child with intent to cause
bodily injury, which he received for striking a minor
with a belt. He did not serve any jail time for that con-
viction. He also had a conviction at the age of nineteen
for aiding and abetting unauthorized entry into the
United States where he served thirty-two days in jail, and
one at the age of twenty-four for possessing counter-
feit money for which he received an eight-month sentence.
The government argued to the district court that Saenz
was a career criminal who would have qualified as a
career offender if his “illegal investment” conviction
had been more recent, and that career offender status
would have carried an advisory guideline range of 360
months to life. The argument that Saenz’s criminal
history warrants a sentence of at least 360 months’ im-
prisonment strikes us as excessive. Although he is no
saint, it is quite the leap to argue that a defendant with
this record should be imprisoned for at least thirty
years for a single transport of drug money.
No. 09-3647 17
Saenz’s sentence is all the more staggering when com-
pared to those received by others in the conspiracy. Jesus
Manuel Fierro-Mendez, the only Juarez principal sen-
tenced so far, received 324 months’ imprisonment. And as
one of the top leaders, it is proper that he receive more
time in prison than Saenz. But no one else sentenced
as of the time of oral argument had received a sen-
tence longer than Saenz did. Jose Meraz and Roberto
Espinoza, for example, who transported cocaine and
drug proceeds between El Paso and Indianapolis, re-
ceived sentences of 70 and 78 months, respectively. Pedro
Mendoza, who helped Mascorro offload cocaine ship-
ments, weighed and packaged the cocaine, and counted
drug proceeds, received 97 months. Carrera Camilo,
whose conduct was comparable to Mendoza’s, received
46 months. And Mascorro, who coordinated the opera-
tion from Indianapolis, received 144 months’ imprison-
ment, although it is true that he cooperated and testified
at Saenz’s trial.
Saenz’s counsel represents that Saenz is the only de-
fendant who did not receive a reduction pursuant to
U.S.S.G. § 5K1.1. A defendant can receive such a re-
duction only after the government makes a motion as-
serting that the defendant has provided “substantial
assistance” in the investigation and prosecution of
another person who has committed an offense. Inexperi-
enced couriers who perform a small role in the con-
spiracy often lack the information necessary to pro-
vide “substantial assistance” to the government, how-
ever, which precludes them from receiving a reduction
under § 5K1.1 while the more culpable persons can
18 No. 09-3647
provide the information and benefit from the reduction.
See Timothy P. Tobin, Drug Couriers: A Call for Action by
the U.S. Sentencing Commission, 7 Geo. Mason L. Rev.
1055, 1065 (1999). Granted, Saenz went to trial and
did not plead guilty like the defendants who received
the § 5K1.1 reduction. We do not know whether the
§ 5K1.1 reduction was offered to him before he made
the decision to go to trial.
For the reasons stated, we remand this case to the
district court. It should determine whether Saenz should
receive a minor participant reduction in light of the fact
that the record supports that his involvement in the
conspiracy was only on a single occasion.
III. CONCLUSION
Saenz’s conviction is A FFIRMED. His sentence is VACATED,
and we R EMAND for further proceedings consistent
with this opinion.
10-13-10