In the
United States Court of Appeals
For the Seventh Circuit
No. 13-1811
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ARTURO VALDEZ,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 96 — Amy J. St. Eve, Judge.
ARGUED NOVEMBER 19, 2013 — DECIDED JANUARY 13, 2014
Before POSNER, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Arturo Valdez pled guilty to
possessing heroin with intent to distribute. See 21 U.S.C.
§ 841(a)(1). He admitted responsibility for 700 grams of heroin,
but in applying the Sentencing Guidelines, the district court
held him accountable for more than three kilograms of the
drug. The court imposed a within-guidelines sentence of 140
months in prison. On appeal Valdez challenges his sentence,
arguing that the court’s drug quantity finding violated his Fifth
2 No. 13-1811
and Sixth Amendment rights, that the finding was based on
unreliable evidence, and that the court failed to address an
argument he made in mitigation against undue reliance on
drug quantity. We affirm.
I. Factual Background
In February 2012 Valdez received a call from a government
informant who said only that he wanted some “China.” Valdez
understood this was a request for one kilogram of heroin and
agreed. The next day Valdez paid a friend $500 to drive him to
pick up heroin from his supplier. He then told the informant
that he would be in the alley behind the informant’s home in
a few minutes. When Valdez arrived at the informant’s home,
police saw him get out of the car carrying a shoe box. Valdez
saw the police and fled but was apprehended within moments.
The shoe box contained approximately 500 grams of heroin.
Valdez pled guilty to possessing heroin with intent to
distribute and admitted responsibility for a total of 700 grams
of the drug. Valdez was informed in his plea agreement and at
the plea colloquy that, given the amount of heroin he acknowl-
edged, he faced a statutory minimum of five years in prison
and a statutory maximum of forty years. See 21 U.S.C.
§ 841(b)(1)(B)(i).
For purposes of the Sentencing Guidelines, however, the
government contended that Valdez was responsible for
between three and ten kilograms of heroin. The probation
officer agreed, assigning a base offense level of 34 in the
presentence report. See U.S.S.G. § 2D1.1(a)(5), (c)(3). In support
of the higher drug quantity, the government offered summa-
No. 13-1811 3
ries by DEA agents of statements given by Valdez and the
informant.
According to the agents, Valdez was read Miranda warn-
ings after his arrest and agreed to cooperate with law enforce-
ment. He admitted selling one kilogram of heroin per week
during the previous two months and said that he had expected
to sell the informant a kilogram of heroin for $56,000 the day
of his arrest. When the agents told Valdez that the shoe box
contained only half that amount, he agreed to call his supplier
to discuss the discrepancy. The supplier acknowledged that the
package was short on quantity but told Valdez that he had
given him all the heroin he had at the time. The informant told
the DEA agents that he had made three purchases from
Valdez, each of one kilogram of heroin for approximately
$55,000 per kilogram.
At sentencing, Valdez objected to the drug quantity
calculation, and although he did not testify, he denied having
ever made statements to the DEA agents. Valdez challenged
the probation officer’s reliance on the DEA reports, pointing
out that neither the agents nor the informant testified at the
sentencing hearing and the statements were merely summaries
that were not corroborated by any controlled buys. Anticipat-
ing the Supreme Court’s decision in Alleyne v. United States,
133 S. Ct. 2151 (2013), and arguing for an even broader holding,
he also argued that the government should be required to
prove beyond a reasonable doubt the drug quantity used
under the Sentencing Guidelines. He also argued that the
district court should not rely as heavily on drug quantity as the
Guidelines advise because quantity is not a reliable indicator
of culpability.
4 No. 13-1811
The district court overruled Valdez’s objection and adopted
the drug quantity recommended by the presentence report.
The court found that Valdez in fact gave the statement, which
was corroborated by his understanding of the informant’s
request for “China” and his supplier’s willingness to admit
that he had shorted Valdez. Both facts indicated ongoing
relationships dealing with large amounts of heroin. The court
also found that the informant’s statement provided further
corroboration as it revealed similar drug quantities and price.
II. Analysis
We consider first the argument that the district court
violated the defendant’s Fifth and Sixth Amendment rights by
finding facts that increased the amount of heroin he was
responsible for under the Guidelines from 700 grams to more
than three kilograms. Valdez bases this argument on Alleyne,
which held that “any fact that increases the mandatory
minimum is an ‘element’ that must be submitted to the jury”
and proved beyond a reasonable doubt. 133 S. Ct. at 2155. The
amount of heroin Valdez admitted responsibility for estab-
lished a statutory minimum of five years. See 21 U.S.C.
§ 841(b)(1)(B)(i). Because the quantity found by the district
court would support a statutory minimum of ten years, see id.,
§ 841(b)(1)(A)(i), Valdez says, the court ran afoul of Alleyne.
There is no indication, however, that the district judge
thought her sentencing discretion was cabined by a higher
statutory minimum than the five-year minimum supported by
the 700 grams of heroin charged in the indictment and admit-
ted by Valdez. Thus, Valdez’s position is foreclosed by United
States v. Hernandez, 731 F.3d 666, 672 (7th Cir. 2013).
No. 13-1811 5
Valdez suggests that we read Alleyne as overruling the
remedial holding of United States v. Booker, 543 U.S. 220, 245
(2005), and require all drug quantity determinations under the
now-advisory Sentencing Guidelines to be submitted to a jury.
We decline. The Court in Alleyne specifically noted that its
ruling “does not mean that any fact that influences judicial
discretion must be found by a jury.” 133 S. Ct. at 2163. There is
no conflict with Booker. The district court did not err by
calculating a greater drug quantity solely for purposes of
determining Valdez’s Guideline range without requiring proof
beyond a reasonable doubt or a jury finding or admission. See
United States v. Claybrooks, 729 F.3d 699, 708 (7th Cir. 2013).
Absent such an extension of Alleyne, Valdez cannot prevail on
his argument that a more demanding standard of proof was
required. See United States v. Mitchell, 635 F.3d 990, 993 (7th
Cir. 2011); United States v. Pira, 535 F.3d 724, 728 (7th Cir. 2008).
Valdez next contends that the district court erred by
considering unreliable evidence—the statements by Valdez
and the informant recounted in the DEA agents’
reports—when making its drug quantity finding. He describes
these statements as unreliable because they were not recorded
or signed and because neither the agents nor the informant
testified at the sentencing hearing. Valdez cannot establish
clear error based on the fact that neither the DEA agents nor
the informant testified at the sentencing hearing. See United
States v. Vaughn, 722 F.3d 918, 932 (7th Cir. 2013) (district court
could rely on reliable hearsay in making drug quantity
finding); United States v. Maiden, 606 F.3d 337, 339 (7th Cir.
2010) (district court could use reliable hearsay to make findings
under Sentencing Guidelines).
6 No. 13-1811
In this case, the statements were sufficiently reliable. They
were consistent and corroborated one another. Both statements
indicated repeated dealings in kilogram quantities of heroin for
similar prices. And the informant knew that Valdez did not
have a driver’s license and knew the identity of the friend
Valdez hired as a driver. Finally, the statements were also
corroborated by Valdez’s understanding of the code word
“China” and his familiarity with the informant’s home. The
district court reasonably relied on these statements in support
of its drug quantity finding. See United States v. Artley, 489 F.3d
813, 821 (7th Cir. 2007).
Valdez argues also that the district court committed a
procedural error by failing to address his argument at sentenc-
ing that no empirical evidence supports a link between the
quantity of drugs involved in an offense and a defendant’s
culpability. After properly calculating the applicable Guideline
range, a sentencing judge may disagree with the Guidelines’
advice but is not required to do so. See United States v. Corner,
598 F.3d 411, 416 (7th Cir. 2010) (en banc); United States v.
Huffstatler, 571 F.3d 620, 623 (7th Cir. 2009). And as a general
rule, a sentencing judge must address a defendant’s principal
non-frivolous arguments in mitigation. See United States v.
Marin-Castano, 688 F.3d 899, 902 (7th Cir. 2012); United States v.
Pulley, 601 F.3d 660, 667 (7th Cir. 2010). We have made clear,
however, that where a defendant raises such a sweeping
challenge to a Guideline provision as the use of drug quantity
to help gauge culpability, the sentencing judge need not
engage the argument as might be needed with a more specific
challenge to how the Guideline provision applies to the
particular defendant. See United States v. Schmitz, 717 F.3d 536,
No. 13-1811 7
541–42 (7th Cir. 2013); United States v. Garthus, 652 F.3d 715, 721
(7th Cir. 2011); United States v. Aguilar-Huerta, 576 F.3d 365,
367–68 (7th Cir. 2009). There was no procedural error.
AFFIRMED.