NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 25, 2011
Decided April 14, 2011
Before
MICHAEL S. KANNE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 10‐2873
UNITED STATES OF AMERICA, Appeal from the United States District Court
Plaintiff‐Appellee, for the Northern District of Illinois, Eastern
Division.
v. No. 09 cr 222‐1
JAIR FIGUEROA‐SORIANO, Robert W. Gettleman,
Defendant‐Appellant. Judge.
O R D E R
Jair Figueroa‐Soriano trafficked hundreds of kilograms of powder cocaine for
suppliers in Texas and Mexico. He pleaded guilty to one count of conspiring to possess five
kilograms or more of cocaine with intent to distribute, see 21 U.S.C. § 846, and was
sentenced to 168 months’ imprisonment, 5½ years below the guidelines range. On appeal
he challenges his sentence, arguing that the court should have sentenced him lower still by
calculating his guideline range based on 5 kilograms, rather than the 299 ultimately
attributed to him. He contends that the sole evidence of the additional 294 kilograms of
cocaine was his immunized proffer. We find that Figueroa‐Soriano waived his right to
challenge the cocaine quantity involved and that the record supports the district court’s
finding that Figueroa‐Soriano was responsible for 299 kilograms. We therefore affirm.
No. 10-2873 Page 2
Figueroa‐Soriano is a Mexican citizen who trafficked hundreds of kilograms of
powder cocaine in and around Chicago. Working with suppliers in Texas and Mexico, they
“fronted” cocaine to drug dealers who bought on credit and paid after reselling the drugs.
Figueroa‐Soriano recruited his younger brother into the scheme and served as its
accountant, maintaining copious records and collecting cash for the cocaine suppliers.
After fronting five kilograms of cocaine to a government informant, Figueroa‐
Soriano and his brother were arrested. Agents recovered drug ledgers documenting
additional sales of at least 261 kilograms of powder cocaine. Agents also found $640,000 in
the rear cargo of Figueroa‐Soriano’s Ford Explorer and $270,307 in a secret compartment in
his Chevrolet van, totaling $910,307 in cash. The ledgers showed that Figueroa‐Soriano
charged on average $27,000 for a kilogram of cocaine, and thus the cash was the equivalent
of 33 kilograms of cocaine. In short, the evidence showed Figueroa‐Soriano trafficked at
least 299 kilograms of powder cocaine (5 + 261 + 33).
Figueroa‐Soriano pleaded guilty to conspiring to possess five kilograms or more of
cocaine with intent to distribute, see 21 U.S.C. § 846, and conceded that the conspiracy
involved at least 5 kilograms of cocaine. For its part, the government maintained that he
was responsible for a much larger quantity of drugs and reserved its position on whether he
had accepted responsibility. Figueroa‐Soriano then participated in a safety‐valve interview.
See U.S.S.G. § 5C1.2(a)(5). Although it was later determined that he was ineligible for the
reduction because of his criminal history, during the proffer session, he admitted
distributing approximately 200 kilograms.
The PSR reported that Figueroa‐Soriano was responsible for 299 kilograms of
cocaine. That finding was derived from the cash and drug ledgers seized, and the five
kilograms fronted to the government informant. The report recommended a base offense
level of 38, see U.S.S.G. § 2D1.1(c)(1) (2009), added two levels for his role in the offense, see
U.S.S.G. § 3B1.1(c), subtracted three levels for acceptance of responsibility, see U.S.S.G.
§ 3E1.1(a)‐(b), and concluded that his total offense level was 37. This total offense level,
when coupled with a criminal history category of II, yielded a guidelines range of 235 to 293
months’ imprisonment.
Figueroa‐Soriano filed a pre‐sentencing statement at first conceding that his base
offense level was 38. He challenged only the enhancement for his role and the criminal
history category. In a supplemental statement he later objected that his base offense level
should be 32, see U.S.S.G. § 2D1.1(c)(4), reflecting only the 5 kilograms sold to the
government informant. At sentencing, however, he withdrew his objection to the PSR’s
calculations. Instead Figueroa‐Soriano argued that, when considering the factors in
No. 10-2873 Page 3
§ 3553(a), the district court should weigh in his favor that he was caught with only 5
kilograms, but was being sentenced for 294 more after his proffer.
The district court adopted the PSR’s calculations, but ultimately sentenced Figueroa‐
Soriano to 168 months’ imprisonment. It cut him a 5½‐year break because, had it counted
only the 5 kilograms, that quantity would have yielded a total offense level of 35 not 37;
because Figueroa‐Soriano’s criminal history was somewhat overstated as he was twice
convicted days apart for illegal reentry; and because in any event he will be deported to
Mexico after serving his sentence.
On appeal Figueroa‐Soriano challenges his sentence on the ground that the district
court should have sentenced him based solely on the 5 kilograms of powder cocaine
actually seized. He contends that there was no direct evidence, besides his proffer, that he
sold additional cocaine and, because proffers are immunized, the district court abused its
discretion in basing its sentence on the additional drugs.
At the threshold, Figueroa‐Soriano waived his right to challenge the cocaine
quantities involved. In his opening brief, counsel alleges that he “contested the base level . .
. [and] the Sentencing Court overruled all Appellants’ objections.” But that is inaccurate;
counsel withdrew the objection. Counsel clearly disclaimed reliance on a guidelines
challenge, arguing instead for consideration of the drug quantities under 3553(a). Counsel
and client made a strategic decision; had they not, Figueroa‐Soriano would not have
received sentencing credit for acceptance of responsibility. The withdrawal of an objection
at sentencing waives the issue for appeal. See United States v. Venturella, 585 F.3d 1013, 1018‐
19 (7th Cir. 2009). Figueroa‐Soriano’s withdrawal of the objection, therefore, waived
consideration of his argument on appeal.
Even if Figueroa‐Soriano forfeited, rather than waived, his challenge to the drug
quantity, we would affirm the district court’s judgment because there was no error, plain or
otherwise. See United States v. Irby, 558 F.3d 651, 653‐55 (7th Cir. 2009). Counsel cites in
passing United States v. Farmer, 543 F.3d 363, 374‐75 (7th Cir. 2008), apparently hoping that
we will cobble together an analogy for him. Fundamentally, his argument rests on the
premise that the only evidence supporting the district court’s drug‐quantity determination
was Figueroa‐Soriano’s proffer. But nowhere does the record show that either the PSR or
the sentencing judge considered, much less relied on, the 200 kilogram figure discussed
during the proffer.
Here, unlike Farmer, the district court had independent grounds supporting the
additional 294 kilograms attributed to Figueroa‐Soriano. Beyond the 5 kilograms fronted to
the government informant, the ledgers and cash proved another 294 kilograms of cocaine.
No. 10-2873 Page 4
The PSR found that he was responsible for 299 kilograms by adding the drug ledgers that
recorded sales of 261 kilograms, with the $910,307 signifying another 33 kilograms, and the
5 kilograms he actually delivered to the confidential informant. And counsel conceded that
the PSR’s calculations were correct. Evidentiary rules are relaxed at sentencing, see United
States v. Abdulahi, 523 F.3d 757, 761 (7th Cir. 2008), where a court may consider information
that has sufficient indicia of reliability to support its probable accuracy. U.S.S.G. § 6a1.3(a);
see United States v. Knox, 624 F.3d 865, 873 (7th Cir. 2010). These calculations are sufficiently
accurate, derived as they were from Figueroa‐Soriano’s own ledgers and the cash recovered
from his cars. Hence, Figueroa‐Soriano’s guidelines range was based on evidence
independent of his proffer. He offers no reason why we should doubt that evidence (he
does not consider it at all).
AFFIRMED.