United States v. Vallar

In the

United States Court of Appeals
For the Seventh Circuit

Nos. 07-3641, 08-1361, 08-3888 & 09-3484

U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.

R OBERT V ALLAR, T YRAIL C URRY,
A MADOR H ERNANDEZ, and
E LADIO P EDROZA, S R.,
Defendants-Appellants.

Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:05-CR-472—John W. Darrah, Judge.

A RGUED O CTOBER 26, 2010—D ECIDED F EBRUARY 14, 2011

Before P OSNER, FLAUM, and SYKES, Circuit Judges.
F LAUM, Circuit Judge. Three defendants were con-
victed of committing various drug-related offenses; a
fourth pled guilty. They raise a variety of arguments on
direct appeal, primarily challenging their sentences and
denials of motions to suppress their confessions. For the
following reasons, we affirm.
2 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

I. Background
On September 20, 2005, a federal grand jury returned
a fifty-one-count indictment against seventeen indi-
viduals, including Amador Hernandez (“Hernandez”),
Eladio Pedroza, Sr. (“Pedroza”), Robert Vallar (“Vallar”),
and Tyrail Curry (“Curry”). It charged the four with
various offenses related to a drug conspiracy.
Juan Carlos Iniguez, a co-defendant who is not a party
to this appeal, directed a drug business that distributed
cocaine and heroin to multiple cities in the United States
beginning in the summer of 2004. Iniguez obtained
cocaine from an individual in Mexico, Juan Sanchez,
and heroine from an individual named Jesus Ocampo.
Iniguez distributed wholesale quantities of the drugs to
co-conspirators Phillip King, Gonzalo Sanchez, and
Vallar, among others, who were spread throughout
Kentucky, Ohio, and Chicago. Pedroza assisted Iniguez
in distributing cocaine and collecting proceeds.
Vallar was arrested at his home on May 26, 2005. He
waived his Miranda rights and confessed to participating
in the drug conspiracy. Hernandez was also arrested on
May 26, 2005. After waiving his Miranda rights, he also
confessed to various aspects of the charged crimes. Both
Vallar and Hernandez moved to suppress their confes-
sions. The district court denied both motions.
Curry pled guilty to the conspiracy charge on Septem-
ber 6, 2006. On April 13, 2007, a jury found Pedroza,
Hernandez, and Vallar guilty on multiple counts.
Hernandez and Pedroza separately filed motions for
judgment of acquittal and a new trial in the alternative.
The district court denied both motions.
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 3

On September 12, 2007, the district court sentenced
Vallar to 151 months of imprisonment on Counts 1 and 35
and 48 months of imprisonment on Count 37, to run con-
currently. On October 28, 2008, the district court sen-
tenced Hernandez to 324 months on Counts 1, 23, 40, and
48, 60 months on Counts 9 and 49, 240 months on
Counts 34 and 36, and 48 months on Counts 4, 25, 33, and
39, to run concurrently. On September 29, 2009, the
district court sentenced Pedroza to 360 months of im-
prisonment on Count 1 and 48 months on Count 12, to
run concurrently.

II. Analysis
A. Pedroza’s Sentence
Pedroza challenges his sentence on four grounds. We
review de novo whether the district court committed a
procedural error, which includes determining whether
the district court properly considered the factors in 18
U.S.C. § 3553(a) and mitigating evidence, and whether
it improperly treated the guidelines as mandatory or
otherwise unduly relied on them. See Gall v. United
States, 552 U.S. 38, 51 (2007); United States v. Coopman,
602 F.3d 814, 817-19 (7th Cir. 2010); United States v. Omole,
523 F.3d 691, 697-98 (7th Cir. 2008). Next, we review
for abuse of discretion whether the sentence is substan-
tively reasonable in light of the factors in § 3553(a).
Coopman, 602 F.3d at 819.
First, while Pedroza concedes that the district court
correctly calculated his guidelines range, he claims that
4 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

the district court misapplied the factors in § 3553(a)1 and
failed to adequately consider mitigating facts. This argu-
ment is vacuous.
The district court thoroughly analyzed the factors in
§ 3553(a) and committed no reversible error in doing
so. It discussed the nature and circumstances of the
offense—including the amount of drugs involved in the
conspiracy, Pedroza’s role in the conspiracy, and the
harm from the drugs he distributed—Pedroza’s history
and characteristics—including his age and the fact that a
guideline sentence would likely ensure that Pedroza
would die in prison, that he has a strong family that he
loves and supports, and his significant criminal history,

1
The factors in § 3553(a) include, among other things:
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment
for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the de-
fendant; and
(D) to provide the defendant with needed educational
or vocational training, medical care, or other correc-
tional treatment in the most effective manner;
(3) the kinds of sentences available . . . .
18 U.S.C. § 3553(a).
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 5

including leading a drug distribution ring while impris-
oned on a previous conviction—and the need for the
sentence imposed to deter, promote respect for the law,
provide just punishment, and protect the public from
further crimes by Pedroza—including that Pedroza’s
previous sentences did not deter him from recidivating,
his lack of remorse, and that he has no respect for the
laws of the United States. The district court also con-
sidered that Pedroza would likely return and recidivate
if he received a below-guidelines sentence and was de-
ported after release, since he had been found in the
U.S. illegally on three occasions.
The district court meaningfully considered the factors
in § 3553(a). Pedroza claims that the district court did not
adequately consider each of his mitigation arguments.
The district court addressed the majority and strongest
of Pedroza’s arguments. That the district court did not
explicitly discuss each of Pedroza’s weaker arguments
does not constitute reversible error under the facts of
this case. See United States v. Paige, 611 F.3d 397, 398 (7th
Cir. 2010) (“[W]e regularly affirm sentences where the
district judge does not explicitly mention each mitiga-
tion argument raised by the defendant. Indeed, sen-
tencing judges must only demonstrate meaningful con-
sideration of § 3553(a) factors.”).
Second, Pedroza claims that the district court did not
adequately consider every factor in § 3553(a), specifically
mentioning that the district inadequately discussed
his history and characteristics, whether the sentence
provided just punishment for the offense and would
6 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

promote respect for the law, and, more generally, whether
the sentence was longer than necessary to promote the
goals of sentencing. This argument is also meritless.
As the discussion above indicates, Pedroza’s argument
is belied by the record. The district court adequately
discussed the factors in § 3553(a) he references. Thus,
even if the district court did not consider each factor in
§ 3553(a), that would not constitute reversible error. See,
e.g., United States v. Shannon, 518 F.3d 494, 496 (7th Cir.
2008) (“The court need not address every § 3553(a)
factor in checklist fashion, explicitly articulating its con-
clusions regarding each one. Instead the court may
simply give an adequate statement of reasons, consistent
with § 3553(a), for thinking the sentence it selects is ap-
propriate.”).
Third, Pedroza argues that the district court unduly
relied on the guideline range in selecting his sentence.
But we see no indication in the record that the district
court treated the guidelines as mandatory or presumed
that a within-guidelines sentence was reasonable. See
generally United States v. Carter, 530 F.3d 565, 577-78
(7th Cir. 2008) (discussing whether the district court
failed to properly recognize the advisory nature of the
guidelines); United States v. Schmitt, 495 F.3d 860, 865 (7th
Cir. 2007) (holding that a district court gave too much
weight to the guidelines where “his remarks indicated
that he felt that there was an outside constraint on his
discretion that he was not free to set aside”); United States
v. Ross, 501 F.3d 851, 853-54 (7th Cir. 2007). Instead, the
record demonstrates that the district court adequately
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 7

explained its sentencing decision in light of the factors
in § 3553(a) and Pedroza’s characteristics.
Finally, Pedroza argues that his sentence is substan-
tively unreasonable. He believes that a 360-month sen-
tence is unnecessarily long in light of his age, fifty-seven,
and points out that he will likely die in prison. He
argues that a shorter sentence would sufficiently
address the goals of sentencing. This argument is also
unavailing.
We presume that Pedroza’s sentence is reasonable
because it falls within the properly calculated guidelines
range. United States v. Panaigua-Verdugo, 537 F.3d 722,
727 (7th Cir. 2008). Pedroza “can rebut this presumption
only by demonstrating that his or her sentence is unrea-
sonable when measured against the factors set forth in
§ 3553(a).” United States v. Nitch, 477 F.3d 933, 937 (7th
Cir. 2007) (internal quotation marks and citation omit-
ted). This is no easy task when the defendant receives
the lowest possible within-guidelines sentence, which
Pedroza did. We have written that such a sentence
“will almost never be unreasonable.” United States v.
Tahzib, 513 F.3d 692, 695 (7th Cir. 2008). Pedroza’s
strongest argument is that he is likely to die in prison if
his sentence is not reduced. Still, we find no abuse of
discretion under the circumstances of this case. See
Omole, 523 F.3d at 698 (“This totality-of-the-circumstances
analysis requires that we defer to the sentencing
judge, who considers each defendant as an individual
and decides sentences on a case-by-case, rather than
wholesale, basis. We recognize that the sentencing judge
8 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

is in the best position to apply the § 3553(a) factors to
the individual defendant, and that the judge sees things
we cannot see, assesses in real-time the credibility of
witnesses and defendants when we cannot, and develops
insights from the various bits and pieces of informa-
tion that he comes across in the course of a case that
nonetheless are not reflected in the record.”). Although
“death in prison is not to be ordered lightly, and the
probability that a convict will not live out his sen-
tence should certainly give pause to a sentencing court,”
we have upheld such sentences on appeal where
the sentencing court considered the likelihood of a defen-
dant’s death in prison, but concluded that other factors
warranted the particular sentence. United States v.
Wurzinger, 467 F.3d 649, 652-53 (7th Cir. 2006); see
United States v. Kincannon, 567 F.3d 893, 901 (7th Cir.
2009). The record demonstrates that the district court
seriously considered that Pedroza would likely die in
prison if he received a within-guidelines sentence,
but it nonetheless imposed the sentence based on the
seriousness of Pedroza’s crime, his past recidivism and
the likelihood that he would continue to commit crimes
if released from prison, the fact that he directed the
operation of a drug distribution ring while in a fed-
eral prison, his lack of remorse for his offense, and its
conclusion that Pedroza is a threat to society due to
his persistent distribution of drugs. The district court
did not abuse its discretion in sentencing Pedroza to
360 months.
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 9

B. Hernandez’s Sentencing Enhancement
Hernandez challenges the district court’s application
of a three-level enhancement pursuant to U.S.S.G.
§ 3B1.1(b) based on its conclusion that Hernandez played
a supervisory or managerial role in the conspiracy.
We review the district court’s decision for clear error.
United States v. Curb, 626 F.3d 921, 924 (7th Cir. 2010).
We reverse “only if, after reviewing the entire evidence,
[the court] is left with the definite and firm conviction
that a mistake has been made.” Id. (internal quotation
marks and citations omitted).
Section 3B1.1(b) of the sentencing guidelines provides
a three-level enhancement if “the defendant was a
manager or supervisor (but not an organizer or leader)
and the criminal activity involved five or more partic-
ipants or was otherwise extensive.” U.S.S.G. § 3B1.1(b).
The guidelines do not define the terms “manager” or
“supervisor.” But the fourth application note to § 3B1.1(b)
provides a list of factors that we consider when deter-
mining whether a defendant had a managing or supervi-
sory role:
Factors the court should consider include the exercise
of decision making authority, the nature of participa-
tion in the commission of the offense, the recruit-
ment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of participa-
tion in planning or organizing the offense, the nature
and scope of the illegal activity, and the degree of
control and authority exercised over others.
10 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

U.S.S.G. § 3B1.1(b), cmt. n.4; see United States v. Howell, 527
F.3d 646, 649 (7th Cir. 2008) (“We have noted that these
factors are to be used to distinguish leadership from
management, but have found that they are still relevant
in ascertaining whether an individual had a supervisory
role at all.”). “No one of these factors is considered a
prerequisite to the enhancement, and, at the same time,
the factors are not necessarily entitled to equal weight.”
United States v. Anderson, 580 F.3d 639, 649 (7th Cir. 2009)
(internal quotation marks and citations omitted). When
examining these factors, “we emphasize both relative
responsibility and control over other participants.” Howell,
527 F.3d at 649.2
The district court discussed six of the seven factors
listed in application note four and based its finding
that Hernandez worked as a manager or supervisor on a
variety of factual determinations relevant to those
factors, which included, among other things, that
Hernandez (1) exercised decision-making authority;
(2) took part in planning and organizing the offense
by working as Iniguez’s right-hand man and taking
directions from Iniguez that required Hernandez to

2
We note that there is some discussion in our case law re-
garding whether control over another participant is required
for an enhancement or whether it is merely one factor that
courts consider. See United States v. Gonzalez-Mendoza, 584
F.3d 726, 729 n.3 (7th Cir. 2009) (citing cases). Because we
affirm the district court’s conclusion that Hernandez had
control over other participants in the conspiracy, we need
not address the relative weight of control in this case.
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 11

exercise managerial and supervisory responsibilities
over Raymond Salinas and Phillip King; (3) acted as a
sounding board for Iniguez by discussing the organiza-
tion and planning of the drug conspiracy with Iniguez
on a somewhat regular basis; (4) exercised control and
authority over others when he supervised Salinas and
King; and (5) was entrusted with substantial sums of
money. The district court concluded that there was
“ample evidence” from trial and the sentencing hearing
that Hernandez had a managerial or supervisory role in
the drug conspiracy.
Hernandez claims that he played a passive role in the
drug conspiracy, merely assisting Iniguez in carrying out
the conspiracy without any authority or control over
anyone involved. More specifically, he argues that he
exercised no supervisory authority over Salinas or King
and that the district court erred by concluding otherwise.
He claims that it was Iniguez, not Hernandez, who at-
tempted to supervise Salinas and King.
We find no clear error in the district court’s conclusion
that Hernandez was a manager or supervisor of the
drug conspiracy, or in the district court’s factual conclu-
sions listed above that supported its decision to apply
the enhancement. With regard to Hernandez’s control
over Salinas and King, the record demonstrates that
Iniguez sent Hernandez to Kentucky on two separate
occasions to oversee the receipt and distribution of
drugs in Kentucky, despite the fact that both Salinas
and King were there. It also permits the conclu-
sion that Hernandez had authority over Salinas when at-
12 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

tempting to open hidden compartments in a car to
retrieve drugs in Kentucky. See United States v. Gonzales-
Mendoza, 584 F.3d 726, 729 (7th Cir. 2009) (“Villa ad-
mitted he was in Chicago to oversee drugs and drug
proceeds for a Mexican cartel, which suggests he played
a coordinating or organizing part in the criminal activ-
ity.”). Hernandez claims that Iniguez exercised authority
over Salinas and King, but this does not preclude the
district court’s finding that Hernandez also had such
authority. See U.S.S.G. § 3B1.1, cmt. n.4 (“There can, of
course, be more than one person who qualifies as a
leader or organizer of a criminal association or conspir-
acy.”); see also United States v. Sainz-Preciado, 566 F.3d 708,
715 (7th Cir. 2009) (“[A]ssuming that [the leader of the
entire drug operation] did in fact tell Sainz-Preciado
who to call to pick up the cocaine, Sainz-Preciado’s re-
sulting status as a mere middleman would not make
him immune from application of § 3B1.1. It is Sainz-
Preciado’s relative responsibility and control over
other participants that qualifies him as a manager . . . .”
(internal quotation marks and citations omitted)).
Further, Hernandez does not point us to portions of the
record that negate the other above-mentioned factual
conclusions that the district court reached, and the
portions of the record to which the government directs
us supports the district court’s findings. See United States
v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). Accordingly,
we find no clear error in the district court’s application
of a three-level enhancement for Hernandez’s role in the
drug conspiracy pursuant to U.S.S.G. § 3B1.1(b).
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 13

C. Hernandez’s Motion to Suppress his Post-Arrest
Statement
Hernandez argues that he gave his post-arrest state-
ment involuntarily and that the district court erred in
rejecting his motion to suppress. We review de novo
the district court’s determination that Hernandez’s con-
fession was voluntary, United States v. Montgomery, 555
F.3d 623, 629 (7th Cir. 2009), and we review the district
court’s relevant factual findings for clear error, giving
“special deference to the district court’s credibility deter-
minations,” United States v. Villalpando, 588 F.3d 1124,
1127 (7th Cir. 2009).
Due process requires that a criminal conviction not
be based on an involuntary confession. See generally
Schneckloth v. Bustamonte, 412 U.S. 218, 223-26 (1973);
United States v. Gillaum, 372 F.3d 848, 856-57 (7th Cir.
2004). We have held that “[a] confession is voluntary if,
in the totality of circumstances, it is the product of a
rational intellect and free will and not the result of
physical abuse, psychological intimidation, or deceptive
interrogation tactics that have overcome the defendant’s
free will.” Gillaum, 372 F.3d at 856 (internal quotation
marks and citations omitted); see also Schneckloth, 412
U.S. at 226. “[C]oercive police activity is a necessary
predicate to the finding that a confession is not ‘voluntary’
within the meaning of the Due Process Clause of the
Fourteenth Amendment.” Gillaum, 372 F.3d at 856
(internal quotation marks and citations omitted); see also
Montgomery, 555 F.3d at 632. “[W]e analyze coercion
from the perspective of a reasonable person in the posi-
14 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

tion of the suspect.” United States v. Huerta, 239 F.3d
865, 871 (7th Cir. 2001). We consider the following
factors when evaluating coercion:
The defendant’s age, education, intelligence level,
and mental state; the length of the defendant’s deten-
tion; the nature of the interrogations; the inclusion
of advice about constitutional rights; and the use of
physical punishment, including deprivation of food
or sleep. Narcotics, alcohol, and fatigue also may be
considerations in a particular case.
Id.; see also Schneckloth, 412 U.S. at 226.
The facts of this case require affirming the district
court’s judgment. Agents came to Hernandez’s home at
6:30 AM on May 26, 2005, and arrested him. Hernandez
was in his late fifties at the time of his arrest. He has
diabetes, low blood sugar, and a heart condition, which
the interviewing agents knew at the time of the arrest.
He attended school through the 8th grade, reads and
speaks Spanish, and can speak English “80 percent.” He
also claims to have slow mental ability and a difficulty
understanding what people tell him, although he has
never been treated for mental disabilities. Agents asked
Hernandez for his medications at the time of his arrest,
which he provided, and then took him to their office for
questioning. Agent Maria Lia Fowler (“Agent Fowler”),
formerly known as Agent Lia Posada, asked if Hernandez
had breakfast. Hernandez responded that he had not. He
asked for a soda at 7:35 AM. Before the interrogation,
Agent Fowler gave Hernandez a soda and his medica-
tions and permitted him to use the restroom. The district
court found that after Agent Fowler played intercepted
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 15

calls for Hernandez, she read a Spanish-language
version of Miranda warnings aloud and Hernandez
signed an advice of rights form. Hernandez testified that
he received his Miranda warnings at the end of the inter-
rogation, that he received water but not a soda, and that
he did not use the restroom. But the district court con-
cluded otherwise, crediting the agents’ testimony. Be-
cause Hernandez has not demonstrated that the agents’
testimony was “exceedingly improbable,” we defer to
the district court’s credibility determinations and ac-
cept its findings of fact. United States v. Dillon, 150
F.3d 754, 758 (7th Cir. 1998). The interview proceeded
in Spanish and lasted two-and-a-half hours, from ap-
proximately 8:30 AM until 11 AM. Hernandez was
handcuffed for the duration of the interview. Two agents
testified that Hernandez did not complain of chest pains,
shortness of breath, or other physical ailments before
or during the interview. Hernandez disputes this, but,
again, the district court credited the agents’ testimony,
and Hernandez fails to demonstrate that their testi-
mony was “exceedingly improbable.” Id. Hernandez also
testified that he felt ill during the interrogation, but the
district court credited other evidence that contradicted
Hernandez’s claim that he experienced chest pains and a
heart attack during the interrogation. The agents gave
Hernandez a snack after the interview, at 11 AM. Later
that day, Hernandez was taken to a hospital to assess
his suitability for confinement. The district court re-
viewed medical records indicating that while Hernandez
was at the hospital, he said that his chest pains began
three hours prior to his arrival at the hospital, which
was at approximately 11:30 AM. Considering the totality
16 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

of the circumstances, we affirm the district court’s deci-
sion to deny Hernandez’s motion to suppress his confes-
sion; the facts simply do not suffice to conclude that the
agents were coercive or that Hernandez’s post-arrest
statement was involuntary. Compare Gillaum, 372 F.3d
at 857 (finding that the defendant’s statements were
voluntary when he was thirty-seven at the time of his
arrest, he was personally familiar with the criminal
justice system, he was read the Miranda warnings and
indicated that he understood them, his interviewers,
who knew he was diabetic, offered him food and
insulin, which he refused, and he was interrogated for
less than forty-five minutes, during which he was not
handcuffed), and United States v. Jones, 359 F.3d 921, 923-34
(7th Cir. 2004) (holding that the defendant’s confession
was voluntary where the interviewing agents “informed
Jones about his rights and did not use physical violence[,]
Jones was not handcuffed, and, although he never
asked, he was not denied beverages, phone calls, or
access to a restroom,” where “he was in a familiar setting
because he had attended similar interviews as a union
representative,” and where Jones professed his innocence
with respect to one charge and ultimately ended the
interrogation, even though his interrogators yelled at
him and displayed a weapon) with United States v. Hull,
441 F.2d 308, 312-13 (7th Cir. 1971) (holding that a defen-
dant’s confession was involuntary where he was
mentally and emotionally handicapped and he endured “a
continuous series of intensive interrogations for nearly
twelve hours,” during which he had no sleep or food
except for a cup of coffee). We affirm the district court’s
denial of Hernandez’s motion to suppress.
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 17

D. Vallar’s Motion to Suppress his Post-Arrest Statement
Vallar appeals the district court’s denial of his motion
to suppress his post-arrest statement. When reviewing
a district court’s denial of a motion to suppress, we
review de novo whether the defendant knowingly, intelli-
gently, and voluntarily waived his Miranda rights, and
we review the district court’s factual findings and credi-
bility determinations for clear error. United States v.
Shabaz, 579 F.3d 815, 819-20 (7th Cir. 2009).
Vallar asserts three arguments on appeal. First, he
argues that he did not knowingly, intelligently, and
voluntarily waive his Miranda rights. He points out that
he was arrested at his home at 6:30 AM by officers with
weapons drawn, that he was handcuffed for about
an hour while agents searched his home, and that he
was then taken to the police station and forced to listen
to audio tapes implicating him in the alleged conspiracy
before he received and waived his Miranda rights and
provided the post-arrest statement he seeks to suppress.
Vallar’s argument is unpersuasive. Defendants may
waive their Miranda rights, but only if the waiver is “made
voluntarily, knowingly, and intelligently.” Moran v.
Burbine, 475 U.S. 412, 421 (1986) (quoting Miranda v. Ari-
zona, 384 U.S. 436, 444 (1966)). Determining whether a
waiver meets this standard requires a two-step inquiry:
First, the relinquishment of the right must have
been voluntary in the sense that it was the product
of a free and deliberate choice rather than intimida-
tion, coercion, or deception. Second, the waiver must
18 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

have been made with a full awareness of both the
nature of the right being abandoned and the conse-
quences of the decision to abandon it. Only if the
totality of the circumstances surrounding the inter-
rogation reveal both an uncoerced choice and the
requisite level of comprehension may a court properly
conclude that the Miranda rights have been waived.
Id. (internal quotation marks and citations omitted). When
reviewing the totality of the circumstances, we consider
“the defendant’s background and conduct, the duration
and conditions of the interview and detention, the
physical and mental condition of the defendant, the
attitude of the law enforcement officials, and whether
law enforcement officers used coercive techniques, either
psychological or physical.” Shabaz, 579 F.3d at 820.
Vallar voluntarily, knowingly, and intelligently waived
his Miranda rights. Agent Michael Zobak, who participated
in Vallar’s arrest, testified at the suppression hearing that
Vallar was handcuffed while officers searched his home;
that agents permitted Vallar to use the restroom at
his house while the officers were present; that nobody
threatened or shouted at Vallar; that Vallar was offered
a beverage and the use of a restroom upon arriving at
the station, both of which he declined; and that Vallar
was not handcuffed during the interrogation except
when agents moved him to different rooms. Agent Zobak
also testified that he read Vallar his Miranda rights
and that Vallar waived them and signed an advice of
rights form without any indication that he was confused.
The district court credited Agent Zobak’s testimony.
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 19

Considering the facts Vallar points out above and
Agent Zobak’s testimony, we conclude that Vallar’s
waiver was voluntary. Further, the district court found
that Vallar was capable of understanding his rights, and,
thus, that his waiver was knowingly and intelligently
made. Vallar does not challenge this finding on appeal, and
we find no indication in the record that this finding was
error. See Colorado v. Spring, 479 U.S. 564, 574-75 (1987)
(affirming a district court’s finding that the defendant
knowingly and intelligently waived his Miranda rights
where the defendant failed to allege that he did not
understand his Miranda rights or the consequences of
waiving them). Accordingly, we affirm the district
court’s decision that Vallar voluntarily, knowingly, and
intelligently waived his Miranda rights.
Second, Vallar argues that the agents should have
known that playing the recordings was “reasonably likely
to elicit an incriminating response,” and, thus, that it
constituted an impermissible interrogation because
Vallar had not received Miranda warnings before the
tapes were played. See Rhode Island v. Innis, 446 U.S. 291,
301 (1980); see also Enoch v. Gramley, 70 F.3d 1490, 1500
(7th Cir. 1995) (“We have stated that, under Innis, the
issue is whether a reasonable objective observer would
believe that the encounter was reasonably likely to elicit
an incriminating response from the suspect and
therefore constituted the functional equivalent of inter-
rogation.” (internal quotation marks and citations omit-
ted)). See generally Easley v. Frey, 433 F.3d 969, 973-74
(7th Cir. 2006). Vallar’s argument is unavailing. Merely
apprising Vallar of the evidence against him by playing
tapes implicating him in the conspiracy did not con-
20 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

stitute interrogation. See Easley, 433 F.3d at 973-74 (7th
Cir. 2006) (holding that an officer’s statement informing
the defendant of the evidence against him and the
possible consequences of the charges the defendant
faced did not constitute interrogation, “even if its weight
might move a suspect to speak”); United States v. Sutton,
77 Fed.Appx 892, 895 (7th Cir. 2003) (“[M]erely reciting
the evidence supporting an arrest is not the functional
equivalent of an interrogation.”); Enoch, 70 F.3d at 1500
(holding that where “the police identif[ied] the victim to
the suspect and briefly stat[ed] the evidence against
him, followed by the suspect’s allegedly incriminating
statements” did not constitute interrogation because
“[b]riefly reciting to a suspect in custody the basis for
holding him, without more, cannot be the functional
equivalent of interrogation”). But more critical to our
analysis is the fact that Vallar made no statement in
response to the tapes before he received and waived his
Miranda rights. See United States v. Peterson, 414 F.3d
825, 827-28 (7th Cir. 2005) (writing that the problem
with the defendant’s argument that his confession
violated Miranda, where agents laid out the evidence
against him, administered Miranda warnings, obtained
a waiver, and secured a confession, was that none of
the defendant’s statements preceded the warnings).
Vallar’s next argument is unpersuasive for the same
reason.
Vallar’s last argument is that the tactics agents
used—specifically, playing taped conversations demon-
strating that he participated in the alleged conspiracy
before reading Vallar his Miranda rights and receiving a
waiver—is improper under Missouri v. Seibert, 542 U.S.
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 21

600 (2004); see also United States v. Stewart, 388 F.3d 1079,
1086-90 (7th Cir. 2004). In Seibert, the Supreme Court
reviewed a police protocol that called for interrogating
a defendant and receiving a confession before giving
Miranda warnings, then informing the defendant of his
Miranda rights, receiving a waiver, and interrogating
the defendant a second time, again obtaining a confes-
sion. 542 U.S. at 604. In a divided decision, the Court
found the confession inadmissible. Id. at 617-618, 622. We
have construed Seibert as holding “that post-warning
statements are inadmissible if they duplicate pre-warning
statements intentionally elicited in an effort to evade
Miranda.” Peterson, 414 F.3d at 828.
The agents’ strategy of playing taped conversations
and then reading Vallar his Miranda rights, receiving a
waiver, and beginning to interrogate Vallar does not
violate Seibert. The defendant in Seibert was interrogated
and made incriminating statements both before and after
waiving his Miranda rights. Id. at 604. Vallar was inter-
rogated only after he received and waived his Miranda
rights and he made no incriminating statements before
signing his advice of rights form. See Peterson, 414 F.3d at
827-28 (holding that a defendant’s confession did not
violate the interrogation technique prohibited by Seibert
where agents presented the evidence against him
before reading him his Miranda rights and obtaining a
waiver because the defendant did not make any pre-
warning statement). We affirm the district court’s denial
of Vallar’s motion to suppress.
22 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

E. Vallar’s Motions for Judgment of Acquittal and for
a New Trial
Vallar argues that the district court erred in denying his
motion for acquittal and a new trial on the theory that
there was insufficient evidence to find that he had a
conspiratorial relationship with Iniguez, as opposed to
merely a buyer-seller relationship. We review de novo a
district court’s denial of a motion for acquittal, United
States v. Fassnacht, 332 F.3d 440, 447 (7th Cir. 2003), and
we review the district court’s denial of a new trial for
abuse of discretion, United States v. Kosth, 257 F.3d 712, 718
(7th Cir. 2001).
When evaluating a sufficiency of the evidence claim,
“[w]e consider the evidence in the light most favorable
to the prosecution, making all reasonable inferences in
its favor, and affirm the conviction so long as any
rational trier of fact could have found the defendant to
have committed the essential elements of the crime.”
United States v. Paneras, 222 F.3d 406, 410 (7th Cir. 2000)
(quoting United States v. Masten, 170 F.3d 790, 794 (7th Cir.
1999)). “Only if, from this vantage point, the record
contains no evidence from which the jury could have
found guilt beyond a reasonable doubt, is reversal appro-
priate.” Kosth, 257 F.3d at 718. “Proving that no such
evidence exists presents a nearly insurmountable hurdle
to the defendant.” Fassnacht, 332 F.3d at 447 (quoting
United States v. Hach, 162 F.3d 937, 942 (7th Cir. 1998)).
“To convict a defendant of conspiracy, the government
must prove that (1) two or more people agreed to commit
an unlawful act, and (2) the defendant knowingly and
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 23

intentionally joined in the agreement.” United States v.
Johnson, 592 F.3d 749, 754 (7th Cir. 2010). Attaining a
conviction for conspiracy under 21 U.S.C. § 846, the
relevant charge on appeal, requires proving “that
the defendant knowingly agreed—either implicitly or
explicitly—with someone else to distribute drugs.” Id. But
when the alleged coconspirators are in a buyer-seller
relationship, “we have cautioned against conflating the
underlying buy-sell agreement with the drug-distribution
agreement that is alleged to form the basis of the
charged conspiracy. To support a conspiracy conviction,
there must be sufficient evidence of an agreement to
commit a crime other than the crime that consists of the
sale itself.” Id. (internal quotation marks and citations
omitted). Thus, “to prove a conspiracy, the govern-
ment must offer evidence establishing an agreement to
distribute drugs that is distinct from evidence of the
agreement to complete the underlying drug deals.” Id. at
755. Merely providing “evidence that a buyer and seller
traded in large quantities of drugs, used standardized
transactions, and had a prolonged relationship,” without
more, is inadequate to prove a conspiracy. Id. “Other-
wise, the law would make any ‘wholesale customer of a
conspiracy . . . a co-conspirator per se.’ ” Id. (quoting
United States v. Colon, 549 F.3d 565, 569 (7th Cir. 2008)).
The following are examples of evidence that would
distinguish a conspiracy from a nonconspiratorial buyer-
seller relationship:
[S]ales on credit or consignment, an agreement to
look for other customers, a payment of commission on
sales, an indication that one party advised the other
24 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

on the conduct of the other’s business, or an agree-
ment to warn of future threats to each other’s busi-
ness stemming from competitors or law-enforcement
authorities.
Id. at 755-56. Importantly, “not all credit sales can
support an inference that there was an agreement to
distribute.” Id. at 756 n.5. We have explained that a sup-
plier who extends credit to an individual who purchases
a small quantity of drugs for personal consumption
does not create a conspiracy. Id. But “when a credit sale
is coupled with certain characteristics inherent in an
ongoing wholesale buyer-seller relationship—i.e., large
quantities of drugs, repeat purchases or some other
enduring arrangement—the credit sale becomes sufficient
evidence to distinguish a conspiracy from a noncon-
spiratorial buyer-seller relationship.” Id. (internal
quotation marks and citations omitted). Once “the gov-
ernment has offered some distinguishing evidence, the
jury may rely on [the following] factors . . . to buttress
an inference that there was an agreement to distribute
drugs”: “whether the transactions involved large
quantities of crack . . . whether the parties had a standard-
ized way of doing business over time . . . whether the
parties had a continuing relationship . . . whether the
seller had a financial stake in a resale to the buyer; and . . .
whether the parties had an understanding that the
drugs would be resold.” Id. at 758.
Vallar argues that the government’s evidence estab-
lished a buyer-seller relationship between Vallar and
Iniguez, but not a conspiracy. He claims that the district
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 25

court erred by characterizing two kilograms attributed
to him as a large quantity. He also argues that he had
no long-term agreement with Iniguez to deal drugs.
Although Vallar knew Iniguez for at least ten years, he
claims that wiretaps presented at trial demonstrated
that they were involved in drug dealing together for a
period of less than two months. Vallar concedes that
there was evidence at trial that he purchased drugs from
Iniguez on credit. But he attempts to minimize this by
arguing that Iniguez trusted Vallar due to their friend-
ship, and that the government failed to prove that the
friendship was of a business nature. Vallar also con-
cedes that the evidence may indicate that he and Iniguez
had a standardized way of doing business.
We reject Vallar’s argument. It is undisputed that he
purchased drugs on credit from Iniguez. Our review of
the record indicates that these purchases occurred on at
least two and likely three occasions. This distinguishes
the conspiracy from a buyer-seller relationship. See id. at
755-56, 758. There is also evidence indicating that Vallar
would not pay Iniguez until Vallar resold the drugs.
Despite Vallar’s argument that his relationship with
Iniguez renders the sales on credit less meaningful, it is
well-settled that repeated sales on credit, coupled with
the fact that Vallar and Iniguez had a standardized way
of doing business and evidence that Vallar would not
pay Iniguez until he resold the drugs, permits the infer-
ence that Vallar conspired with Iniguez. See, e.g., id. at
756 n.5; United States v. Rock, 370 F.3d 712, 715 (7th Cir.
2004). Viewing the evidence in the light most favorable
to the verdict, we affirm the judgment of the district court.
26 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

F. Vallar’s Sentencing Enhancement for Obstruction of
Justice
Vallar appeals the district court’s application of a two-
level enhancement for obstruction of justice pursuant to
U.S.S.G. § 3C1.1. Section 3C1.1 permits courts to increase
a defendant’s offense level if he “willfully obstructed or
impeded, or attempted to obstruct or impede, the ad-
ministration of justice.” U.S.S.G. § 3C1.1. Perjury is a well-
settled example of conduct that warrants an obstruc-
tion enhancement. United States v. Bermea-Boone, 563
F.3d 621, 626-27 (7th Cir. 2009). A witness commits
perjury “if, while under oath, he ‘gives false testimony
concerning a material matter with the willful intent to
provide false testimony, rather than as a result of confu-
sion, mistake, or faulty memory.’ ” Id. at 627 (quoting
United States v. Dunnigan, 507 U.S. 87, 94 (1993)). On
appeal, “[w]e review the factual findings underlying the
district court’s application of the obstruction enhance-
ment for clear error, and we review de novo whether
those findings adequately support the enhancement.”
United States v. Anderson, 580 F.3d 639, 648 (7th Cir. 2009).
The district court found that Vallar committed perjury
when he testified that he signed the Miranda waiver
because the agents tricked him by presenting the
waiver form as a property receipt. In light of testimony
from agents present when Vallar signed the waiver in-
dicating that he freely and voluntarily waived his
Miranda rights, the district court concluded that Vallar’s
testimony was false and that he knew it was false.
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 27

Vallar raises two challenges. First, he cites United States
v. Dunnigan, 507 U.S. 87 (1993), to argue that the district
court erred by failing to make sufficient findings that
Vallar committed perjury. 507 U.S. at 95 (“[I]f a defendant
objects to a sentence enhancement resulting from her
trial testimony, a district court must review the evidence
and make independent findings necessary to establish a
willful impediment to or obstruction of justice, or an
attempt to do the same, under the perjury definition
we have set out. When doing so, it is preferable for a
district court to address each element of the alleged
perjury in a separate and clear finding. The district court’s
determination that enhancement is required is suf-
ficient, however, if . . . the court makes a finding of an
obstruction of, or impediment to, justice that en-
compasses all of the factual predicates for a finding of
perjury.”); see also Untied States v. Woody, 55 F.3d 1257,
1273 (7th Cir. 1995). Second, he claims that there is no
evidence in the record that would permit the court to
conclude that he willfully provided false testimony. He
asserts that he subjectively may have felt tricked, and that
testifying to that effect does not constitute willfulness.
We disagree. First, the district court adequately deter-
mined that Vallar committed perjury at the suppression
hearing. It explicitly found that Vallar’s testimony was
false. It also expressly concluded that Vallar intended to
provide false testimony, stating that Vallar’s explanation
of how “his name happened to appear on a Miranda
waiver, frankly, is not credible and not credible to the
point where I find that it manifested an intent by
28 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

Mr. Vallar to deceive the court.” Further, the testimony
undoubtedly concerned “a material matter” because it
came during a suppression hearing at which Vallar argued
that his Miranda waiver was not voluntary, claiming that
it resulted from coercive tactics. Bermea-Boone, 563 F.3d
at 627 (quoting Dunnigan, 507 U.S. at 94); see United States
v. Carrera, 259 F.3d 818, 831-32 (7th Cir. 2001) (affirming
an obstruction enhancement where the district court
merely concluded that testimony was false, but did not
indicate its findings for each element of perjury, because
concluding that the testimony was “untruthful” encom-
passed materiality where there was “no doubt that the
district court considered [the subject of the false testi-
mony] to be material”). Had the district court believed
Vallar’s testimony, it may have suppressed his confes-
sion. See U.S.S.G. § 3C1.1 cmt. 6 (“ ‘Material’ evidence,
fact, statement, or information, as used in this section,
means evidence, fact, statement, or information that, if
believed, would tend to influence or affect the issue
under determination.”); see also United States v. Bedolla-
Zavala, 611 F.3d 392, 396 (7th Cir. 2010). Second, it was
not clear error to conclude that Vallar willfully testified
falsely. The district court weighed Vallar’s testimony
against the government agents’ and concluded that
Vallar lacked credibility. We find no clear error in this
conclusion. See United States v. Ofcky, 237 F.3d 904, 910
(7th Cir. 2001) (affirming the application of an obstruc-
tion enhancement “where the trial judge weighed the
testimony of the defendant against that of others and
determined that the defendant’s testimony lacked credi-
bility.”); see also United States v. Pedigo, 12 F.3d 618, 628-29
Nos. 07-3641, 08-1361, 08-3888 & 09-3484 29

(7th Cir. 1993). We affirm the district court’s application
of the obstruction enhancement.

G. Anders Brief in the Case of Tyrail Curry
Curry pled guilty to Count One, the conspiracy charge,
on September 6, 2006. He admitted to participating in
Iniguez’s drug enterprise by assisting in the receipt and
distribution of cocaine in Kentucky. The district court
sentenced Curry to 210 months of imprisonment, the
lowest within-guidelines sentence, and five years of
supervised release.
Curry’s counsel, a Federal Public Defender in the
Central District of Illinois, concludes that Curry’s case
is without merit and submits an Anders brief seeking
permission to withdraw. See Anders v. California, 386 U.S.
739 (1967). Curry did not respond to counsel’s facially
adequate brief. See Cir. R. 51(b). We limit our review to
the potential issues counsel discusses. United States v.
Schuh, 289 F.3d 968, 973-74 (7th Cir. 2002).
Counsel first considers whether Curry has any non-
frivolous arguments to challenge his conviction. Since
Curry does not seek to challenge his guilty plea on
appeal, counsel properly declines to address any plea-
related issues in his Anders brief. See United States v.
Knox, 287 F.3d 667, 670-71 (7th Cir. 2002).
Counsel does consider, however, whether Curry has
any non-frivolous arguments challenging his sentence.
He properly concludes that Curry has none. First,
Curry’s within-guideline, 210-month sentence did not
constitute a violation of law where it did not exceed
30 Nos. 07-3641, 08-1361, 08-3888 & 09-3484

the statutory maximum sentence of life, 21 U.S.C.
§ 841(b)(1)(A); United States v. Franz, 886 F.2d 973, 977
(7th Cir. 1989), and where nothing in the record indicates
that the district court violated Curry’s equal protection,
due process, or other constitutional rights, see, e.g.,
United States v. Moore, 543 F.3d 891, 895-96 (7th Cir.
2008) (discussing a “class of one” equal protection
claim). See 18 U.S.C. 3742(a)(1) (permitting defendants
to appeal a final sentence that “was imposed in violation
of law”). Next, the district court committed no pro-
cedural errors when applying the sentencing guidelines
to determine Curry’s sentence: It properly calculated
the guidelines range, treated the guidelines as discre-
tionary, considered the factors in § 3553(a), selected a
sentence based on appropriate facts, and adequately
explained the sentence it imposed. See Gall, 522 U.S. at 51.
Finally, Curry’s within-guideline sentence is not sub-
stantively unreasonable. See United States v. Rivera, 463
F.3d 598, 602 (7th Cir. 2006) (“A sentence, such as this, that
falls within a properly calculated Guidelines’ range is
entitled to a rebuttable presumption of reasonableness. . . .
[I]t will be a rare Guidelines sentence that is unreason-
able.” (internal quotation marks and citations omitted)).
We grant counsel’s request.

III. Conclusion
For the foregoing reasons, we A FFIRM the district
court’s judgment and G RANT Curry’s counsel’s request
to withdraw and dismiss Curry’s appeal.

2-14-11