NONPRECEDENTIAL DISPOSITION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 October 9, 2013
Decided December 4, 2013
Before
DIANE P. WOOD, Chief Judge
MICHAEL S. KANNE, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 13‐1428
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 09 CR 669‐12
GERARDO TORRES,
Defendant‐Appellant. James B. Zagel,
Judge.
O R D E R
Gerardo Torres challenges his below‐guidelines sentence, arguing that the
district court failed to address his principal arguments in mitigation. We affirm.
Torres was indicted along with sixteen other members of the Flores Drug
Trafficking Organization for conspiring to distribute more than five kilograms of
cocaine and one kilogram of heroin, see 21 U.S.C. §§ 846, 841(a)(1). The conspirators
smuggled the drugs over the Mexican border and brought them to the greater Chicago
No. 13‐1428 Page 2
area, where the conspiracy was responsible for a significant amount of the cocaine in
the Chicago region. Torres was specifically responsible for unloading cocaine
shipments, delivering cocaine to the conspiracy’s numerous Chicagoland storage
locations and to customers, and collecting money to complete transactions. Although
his involvement in the conspiracy did not last a long period of time, it was intense: in
the five months Torres participated in the conspiracy he delivered more than $3,000,000
in drug proceeds, and handled at least 150 kilograms of cocaine. Torres ultimately
pleaded guilty to one count of conspiracy to possess cocaine with intent to distribute it.
Torres does not contest the guidelines imprisonment range of 135 to 168 months
recommended for his offense. (The district court determined he was eligible for the
safety‐valve exception to the statutory minimum.) Torres argued in the district court
that a below‐guidelines sentence was all that was necessary to provide just punishment.
He emphasized that he had “for all practical purposes, no risk of recidivism,” that his
involvement in the drug conspiracy was “a deviation from an otherwise law abiding
life,” and that he had voluntarily rehabilitated himself following his arrest (mainly by
resuming legitimate employment and pursuing new educational training in anticipation
of a career change). The government recommended a within‐guidelines sentence,
highlighting the fact that Torres handled both money and drugs for the conspiracy—a
broader role than most of his co‐conspirators—and that drug trafficking is a serious
crime that devastates communities.
The district judge imposed a sentence of 110 months, 25 months below the low
end of the guidelines range. In pronouncing his ruling, the judge referred to the
sentences already meted out to seven of Torres’s co‐conspirators, contrasting Torres’s
circumstances specifically with Carlos Hishmeh, a driver who withdrew from the
conspiracy; and Daniel Torres, a cousin who recruited Gerardo to the conspiracy. With
respect to Hishmeh, whose guidelines range was identical to Torres’s, but who was
sentenced to only 48 months, the court emphasized that Hishmeh, unlike Torres, was a
low‐level player in the conspiracy who withdrew from the conspiracy and subsequently
cooperated. With respect to Daniel Torres, who was sentenced well below his
guidelines range of 212 to 262 months for his role in the conspiracy (which role
significantly exceeded Gerardo’s), the judge focused on Daniel’s willingness to plead
guilty quickly, in contrast to Gerardo’s decision to hold out for two‐and‐a‐half years
before pleading guilty. Daniel Torres also had a cooperation agreement with the
government.
No. 13‐1428 Page 3
Torres argues on appeal that the district court failed to consider the mitigating
arguments he raised below, arguments which he believes establish that his sentence is
greater than necessary to serve the purposes of sentencing. See 18 U.S.C. § 3553(a). A
sentencing court must address a defendant’s principal arguments in mitigation unless
those arguments are frivolous. United States v. Garcia‐Segura, 717 F.3d 566, 568 (7th Cir.
2013); see also United States v. Martin, 718 F.3d 684, 687 (7th Cir. 2013) (remand necessary
when sentencing court failed to consider argument regarding recidivism). But so long
as the record reveals that the sentencing judge addressed a defendant’s mitigating
arguments, the judge has discretion to weigh the factors in whatever manner he wishes,
so long as a reasonable justification is provided. See United States v. Annoreno, 713 F.3d
352, 360–61 (7th Cir. 2013); United States v. Trujillo‐Castillon, 692 F.3d 575, 578 (7th Cir.
2012).
Torres first argues that the district court did not properly consider his low risk of
recidivism. In the first place, Torres’s argument presumes that future contact with
Daniel Torres will be severely limited by Daniel’s incarceration for the next decade. But
the judge did consider Daniel’s influence on Gerardo’s behavior: “ . . . the relative
culpability of Daniel Torres . . . matters not simply as a raw comparison, it matters
because, to some extent, Daniel Torres is the reason [Gerardo Torres] is here today. He
didn’t do it alone, and that’s in his favor, in the favor of this defendant . . . .”
Torres further argues that the district court failed to consider that his risk of
recidivism is substantially reduced by, among other things, his acceptance of
responsibility. But the record reflects the district court’s consideration of this argument.
Gerardo had argued in the district court that “[t]he combination of Daniel Torres
serving a fairly lengthy sentence, together with defendant TORRES’ personal
characteristics, . . . and his acceptance of responsibility for his offense, all bode well for
Mr. Gerardo TORRES and point towards a law‐abiding and productive future.”
(footnotes omitted). The court’s conclusion that “Daniel Torres is the reason [Gerardo
Torres] is here today” implicitly recognizes that Gerardo’s personal characteristics and
his acceptance of responsibility are in Gerardo’s favor—and suggest a reduced risk of
recidivism. The judge also considered the reduced‐risk‐of recidivism argument by
comparing Gerardo’s situation to those of Daniel Torres and Carlos Hishmeh,
emphasizing factors related directly to the crime itself, such as Gerardo’s role in the
conspiracy, and, particularly, how he was more involved than Hishmeh but less than
Daniel. Gerardo’s acceptance of responsibility encompasses acceptance of his role in the
conspiracy; a greater role supports a lengthier sentence even with acceptance of
responsibility. The judge further considered that although Daniel’s criminal record was
No. 13‐1428 Page 4
worse than Gerardo’s, Daniel’s early cooperation in the investigation resulted in a
substantially lower sentence than he would have otherwise received, a benefit that was
not available to Gerardo.
Torres next argues that the district court failed to consider his history and
characteristics, see 18 U.S.C. § 3553(a)(1), and specifically that his participation in this
conspiracy was “a significant deviation from an otherwise law‐abiding life.” This was a
stock argument—the kind of run‐of‐the‐mill argument that sentencing judges see
regularly—which the court was entitled to reject without comment. See United States v.
Grigsby, 692 F.3d 778, 791–92 (7th Cir. 2012); United States v. Tahzib, 513 F.3d 692, 695
(7th Cir. 2008). Even so, Torres’s argument is not well‐taken, because the judge
recognized that Torres’s conduct was aberrant, in that it resulted from Daniel Torres’s
influence: the judge justified the below‐guidelines sentence by acknowledging “the
dynamics of this offense . . . and particularly what happened with Daniel Torres.”
Finally, Torres argues that the district court failed to acknowledge that he has
rehabilitated himself since his arrest. Torres apparently believes that adhering to the
terms of his release order while living near the border of Mexico constituted
extraordinary effort on his part to better himself. It does not: rehabilitation requires
something more than following the rules. Cf. United States v. Robertson, 662 F.3d 871,
878–79 (7th Cir. 2011) (evidence of rehabilitative efforts including gainful employment,
raising three children, and taking an active role in preventing crime in the
neighborhood warranted consideration). Torres’s success in finding gainful
employment is to his credit, but was not so unusual a circumstance that the district
judge was required to discuss it at length, or to weigh it heavily in his favor. See United
States v. Gary, 613 F.3d 706, 711 (7th Cir. 2010).
To the extent that Torres’s arguments may be read as a challenge to the
substantive reasonableness of his sentence, he has not presented us with anything that
rebuts the presumption of reasonableness afforded below‐guidelines sentences. United
States v. Klug, 670 F.3d 797, 800 (7th Cir. 2012).
AFFIRMED.