NONPRECEDENTIAL DISPOSITION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 April 29, 2014
Decided July 9, 2014
Before
WILLIAM J. BAUER, Circuit Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 13‐3175
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of Wisconsin.
v.
No. 3:12‐cr‐00062
ROSALINA VELAZQUEZ,
Defendant‐Appellant. Barbara B. Crabb,
Judge.
O R D E R
Rosalina Velazquez pleaded guilty to conspiracy to possess with the intent to
distribute cocaine, 21 U.S.C. §§ 846, 841(a), and the district court imposed a 108‐month
sentence. On appeal Velazquez argues that she should have received a 2‐level reduction
for her minor role in the offense. See U.S.S.G. § 3B1.2(b). Because the court did not
clearly err in refusing this reduction, we affirm the judgment.
No. 13‐3175 Page 2
Rosalina Velazquez and several coconspirators trafficked drugs in Rock County,
Wisconsin, and Winnebago County, Illinois. Velazquez primarily assisted in
maintaining the accounting of drug debts. Her husband, Emeterio Velazquez, played a
central role in the conspiracy by coordinating the delivery of drugs and money, and her
son, Omar Velazquez, brokered deals and collected drug debts. She once attended a
meeting with Emeterio, Omar, and a confidential informant who owed them drug
money, during which Velazquez provided the drug ledger.1 Velazquez also twice
collected thousands of dollars from that informant to pay off his debt. Additionally,
Velazquez had been identified in 11 wiretapped conversations advising Emeterio on
whom to sell drugs to, how to collect drug debts, and what cars to use for deliveries,
and warning him not to keep drugs or money in their home.
Velazquez objected to the presentence report, arguing that her minor role in the
conspiracy warranted a 2‐level downward adjustment, see U.S.S.G. § 3B1.2(b), because
her activities were limited to bookkeeping, she had no decision‐making authority, and
she did not negotiate drug sales or supply or deliver drugs. She added that “her
involvement in this scheme is directly due to her marital relationship.” At sentencing,
her attorney acknowledged that Velazquez had discussed the conspiracy’s activities
with Emeterio, advised him on drug debts, and provided a ledger to him during a
meeting with a drug debtor, but argued that Velazquez deserved a mitigating‐role
adjustment because she “served basically as a confidant to her husband.”
The district court declined to apply the reduction, concluding that Velazquez
was an average participant in the conspiracy. The court found that Velazquez’s
participation in the conspiracy was “necessary to perpetuate the drug trafficking
activities and arguably essential to the conspiracy’s successful operation,” and that her
“maintenance of accurate drug ledgers was integral to the scheme’s profitability.” The
court also concluded that Velazquez had no grounds to deny having decision‐making
authority or having arranged or negotiated any drug transactions. The court then
imposed a sentence of 108 months’ imprisonment, at the bottom of the guidelines range.
On appeal Velazquez challenges the district court’s refusal to apply § 3B1.2(b),
maintaining that she deserved an adjustment for her limited role in the conspiracy. She
does not meaningfully confront the court’s conclusion that her accounting of drug debts
was integral to the conspiracy’s success; instead, she points to other factors which, in
1
The parties discuss a drug ledger maintained by Velazquez but never elaborate
on what that document entailed other than that it kept track of drug debts.
No. 13‐3175 Page 3
her view, establish that she was not an indispensable member of the conspiracy. She
urges, for example, that she did not negotiate, sell, or deliver drugs, have one‐on‐one
contact with customers or suppliers, recruit members for the conspiracy, or have
decision‐making authority.
The sentencing guidelines call for a 2‐level decrease in an offense level if a
defendant played a minor role in the criminal activity. U.S.S.G. § 3B1.2(b). The
reduction is appropriate only if the defendant demonstrates by a preponderance of the
evidence that she is substantially less culpable than the average participant. Id. § 3B1.2
cmt. n.3(A) & 5; United States v. Sandoval‐Velazco, 736 F.3d 1104, 1107 (7th Cir. 2013). We
review for clear error the district court’s decision to deny a minor‐role reduction. United
States v. Panaigua‐Verdugo, 537 F.3d 722, 724 (7th Cir. 2008).
The district court here did not clearly err in denying the reduction. The court
concluded that Velazquez was integral to the conspiracy’s success because she
maintained the drug ledger, and a defendant who engages in “key activities to the
success of the enterprise” is not a minor participant. United States v. Lopez, 545 F.3d 515,
517 (7th Cir. 2008); see United States v. Cain, 155 F.3d 840, 844 (7th Cir. 1998) (defendant
who did not handle drugs or money but provided “necessary services” to the
conspiracy by renting an apartment and car to store and deliver drugs was not minor
participant); United States v. Castillo, 148 F.3d 770, 776 (7th Cir. 1998) (defendant who
provided transportation and shelter was “essential component” to drug conspiracy).
And though Velazquez maintains that she deserves the reduction because she did not
sell, supply, or deliver drugs, and she lacked decision‐making authority, those alleged
limitations are supported solely by her attorney’s unsworn assertions, which are not
evidence, see United States v. Diaz, 533 F.3d 574, 578 (7th Cir. 2008), and so we agree with
the district court that Velazquez had no ground to assert that her role was so limited.
Nevertheless, Velazquez contends that her marriage to Emeterio propelled her
into the conspiracy and, for that reason, the district court should have applied the
minor‐role reduction. She recognizes that we have affirmed the denial of a minor‐role
reduction to defendants who maintained close, trust‐filled relationships with the
conspiracy’s leader, see United States v. Garcia, 580 F.3d 528 (7th Cir. 2009); United States
v. Mendoza, 457 F.3d 726 (7th Cir. 2006), but distinguishes herself from the defendants in
those cases by asserting that she is being punished solely for being married to a drug
trafficker. She relies on a comment made in United States v. Greer, 375 F. Supp. 2d 790,
794 (E.D. Wis. 2005), in which the district court said that “non‐violent women with little
or no prior criminal history are increasingly captured in the ever widening net cast by
No. 13‐3175 Page 4
the war on drugs . . . . In too many cases, women are being punished for the act of
remaining with a boyfriend or husband engaged in drug activity.”
But the record does not support Velazquez’s contention that she was “drawn into
crime due to her relationship with her husband.” To the extent that Velazquez relies on
Greer, the comments in that case related not to the application of U.S.S.G. § 3B1.2(b) but
instead to the application of the sentencing factors under 18 U.S.C. § 3553(a). See Greer,
375 F. Supp. 2d. at 792, 794–95. In any event, the record does not support Velazquez’s
argument that “Emeterio directed her activities and ultimately is responsible for her
involvement.” According to the undisputed facts developed in the presentence report
and at the plea hearing, Velazquez jumped into the conspiracy by advising Emeterio on
how to collect drug debts, whom to sell drugs to, and what car to deliver drugs in,
warning him not to store drugs or money in their house, discussing drug prices with
him, collecting money from drug debtors, and maintaining the drug ledger. See United
States v. Bautista, 532 F.3d 667, 674–75 (7th Cir. 2008) (“predominantly silent” courier
who constantly was at ringleader’s side not minor participant); Mendoza, 457 F.3d at 730
(7th Cir. 2006) (courier who enjoyed “utmost trust and confidence” of conspiracy
mastermind not minor participant).
Lastly, Velazquez for the first time on appeal briefly compares her role in the
conspiracy to coconspirators other than her husband, including Omar Emeterio and
Ruperto Ruiz, who both brokered deals, and Jose Luis Castillo Madrigal, who
threatened debtors and collected debts. But in the district court she compared herself
only to her husband, who, as a leader of the conspiracy, was an inappropriate
comparator. See United States v. Gallardo, 497 F.3d 727, 741 (7th Cir. 2007). Velazquez did
not direct the district court to other coconspirators for comparison, and this
fact‐intensive inquiry is not the sort of assessment that we should undertake in the first
instance. See United States v. McGee, 408 F.3d 966, 987 (7th Cir. 2005).
AFFIRMED.